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THE    LAW 


OF 


Collateral  and  Direct  Inheritance,  Legacy 
and  Succession  Taxes 


EMBRACING 


ALL    AMERICAN    AND    MANY    ENGLISH     DECISIONS,    WITH 
FORMS  FOR  NEW  YORK  STATE,  AND  AN  APPEN- 
DIX  GIVING   THE   STATUTES   OF 


NEW  YORK  OHIO 

NEW  JERSEY  CONNECTICUT 

PENNSYLVANIA  MARYLAND 

MASSACHUSETTS  CALIFORNIA 

MAINE  ILLINOIS 


SECOND  EDITION 


By  BENJ.  F.  DOS   PASSOS 

Late  Assistant  District  Attorney  New  York  County,  N.  Y. 


St.  Paul,  Minn. 

WEST  PUBLISHING  CO. 

1895 


Copyright,  1895, 

BY 

BENJ.  F.  DOS   PASSOS. 


/fr*l5 


PREFACE  TO  SECOND  EDITION. 


Since  the  publication  of  the  first  edition  of  this  work,  in 
September,  1890,  the  views  which  I  then  expressed  in  the 
preface  and  body  of  the  book  as  to  the  efficacy  of  the  inherit- 
ance tax  have  been  most  strongly  confirmed. 

The  apparently  direct  effect  of  the  publication  of  the  stat- 
utes and  decisions  upon  this  subject  has  been  to  introduce  this 
system  of  taxation,  for  the  first  time,  in  the  states  of  Maine, 
Massachusetts,  Ohio,  Illinois,  California,  Connecticut,  and 
New  Jersey;  and  the  system  has  also  recently  been  inaugu- 
rated in  some  of  the  Canadian  provinces  and  in  the  Austral- 
ian colonies.  In  addition  to  the  states  just  referred  to,  to- 
day there  are  in  force,  in  the  following  states,  statutes  di- 
recting and  enforcing  the  collection  of  the  collateral  or  direct 
inheritance  tax,  viz.:  New  York,  Pennsylvania,  Maryland, 
Virginia,  West  Virginia,  North  Carolina,  Delaware,  and 
Tennessee.  In  Minnesota,  so  anxious  were  the  people  to 
have  this  system  that,  when  the  law  enacted  by  the  legisla- 
ture was  declared  unconstitutional,  the  constitution  was  im- 
mediately amended  by  a  provision  providing  for  the  passage 
of  a  proper  law  on  the  subject.  It  requires  nothing  more 
than  ordinary  perception  to  foretell  the  near  adoption  of 
these  laws  in  all  those  states  of  the  Union  where  they  do 
not  now  exist. 

The  successful  application  of  the  system  has  been  strongly 
illustrated  in  the  state  of  New  York,  where,  until  1890, 
there  existed  only  a  collateral  inheritance  tax.  I  then 
called  attention  to  the  importance  of  a  small  tax  on  prop- 
erty passing  to  lineal  or  direct  heirs,  and  in  1892  the  then 

LAW  INHER.  (iii) 


72940? 


IV  PRKFACE    TO    SECOND    EDITION. 

existing  law  was  repealed,  and  a  system  adopted  imposing 
a  small  tax  of  one  per  cent,  upon  lineal  heirs  and  others,  and 
five  per  cent,  upon  collaterals.  From  a  financial  stand- 
point, the  success  of  the  system  of  collateral  and  direct  in- 
heritance taxation  is  most  powerfully  enforced.  In  nine 
years  (1885  to  1894)  the  state  of  New  York  has  collected, 
at  a  very  small  cost,  over  $11,000,000  from  this  system  alone. 
Of  this  amount  over  fifty  per  cent,  or  $6,083,571,  was  collect- 
ed in  the  city  of  New  York,  and  $996,272.77  in  the  county  of 
Kings.1  The  state  received  from  this  tax,  for  the  year  just 
closed  (September  30,  1895),  $2,126,875,  an  increase  over 
1894  of  $437,940.41.  The  largest  amount  of  transfer  taxes 
was  received  by  the  state  in  1893,  when  four  estates  paid 
$1,096,036.97,  and  fifteen  estates  paid  more  than  half  of  the 
entire  amount  collected  that  year.  The  largest  amount 
received  from  any  single  estate  in  the  state  of  New  York, 
since  the  law  went  into  effect,  is  the  sum  of  $500,000,  or  there- 
abouts, which  was  paid  by  the  estate  of  Jay  Gould. 

Much,  if  not  all,  of  the  credit  for  this  condition  of  the  sys- 
tem is  due  to  the  Honorable  James  A.  Roberts,  state  comp- 
troller, and  to  his  deputy,  Col.  William  J.  Morgan.  Not 
only  has  the  state  comptroller  been  successful  with  this  tax, 
but  he  has  also  made  great  progress  with  the  corporation 
tax,  and  has  thus  put  the  balance  on  the  right  side  of  the 
"people's  ledger." 

If  we  cross  the  main  to  Great  Britain,  we  find  that  the  sys- 
tem there  is  one  of  the  most  important  in  the  kingdom. 
It  is  also  a  tax  of  importance  among  the  other  nations  of 
Europe.  A  large  proportion  of  English  revenue  is  collected 
from  what  are  commonly  called  "death  duties,"  consisting  of 
taxes  on  probates,  legacies,  successions,  and  estate  duties; 
and  by  the  "finance  act,"  the  latter  being  a  new  tax,  enacted 

i  Report  of  James  A.  Roberts,  State  Comptroller,  Albany,  1S05,  p. 
392. 


PREFACE    TO    SECOND    EDITION.  V 

in  1894,  a  further  duty  of  one  per  cent,  has  been  imposed 
upon  real  estate  and  personal  property  of  the  value  of  £10,000 
and  upwards.  This  revenue  has  always  been  large.  It  is 
now  said  to  amount  to  over  £13,000,000  annually.2  But  the 
tax  is  evidently  a  great  burden,  as  it  falls  principally  upon 
land;  whereas,  under  the  American  statutes,  with  some 
exceptions,  the  tax  generally  falls  upon  personalty,  which  as 
a  rule  escapes  general  taxation.  Protest  against  the  English 
system  has  recently  been  made  by  many  prominent  English- 
men, notably  by  the  Earl  of  Winchelsea  and  Nottingham.3 

One  great  fault  with  the  law  in  New  York  and  some 
other  states  is  that  too  many  so-called  charitable  institutions, 
including  religious  corporations  and  many  others,  are  ex- 
empted from  this  tax,  especially  in  New  York  under  an  act 
passed  in  1890.4  By  a  brief  examination  of  this  statute  and 
of  the  text  under  the  chapter  on  "Exemptions,"  this  fact  will 
be  readily  ascertained.5  These  exemptions  should  be  limited 
to  well-defined  public  charities,  and  the  revenue  of  the  state 
would  largely  increase. 

Another  suggestion  occurs  in  connection  with  the  inherit- 
ance tax  which  may  lead  to  the  repeal  of  the  frequently 
abused  personal  property  tax.  This  could  be  accomplished 
by  a  small  increase  in  the  rate  of  the  inheritance  tax.  In 
consideration  of  this  repeal,  the  state  would  be  justified  in 
dividing  some  equitable  proportion  of  the  inheritance  tax 
among  the  different  counties  in  proportion  to  their  respective 
contributions  thereto.  If  this  rule  were  to  prevail,  the  city 
of  New  York  should  have,  on  certain  occasions,  a  handsome 
return  from  the  state  treasury,  and,  with  this  compensation, 
no  regret  would  be  expressed  for  the  repeal  of  the  odious  tax 
on  personal  property.     In  the   appendix  I  have  included 

2  Chapter  1,  §  4,  p.  11,  note  12. 

s  See  North  Am.  Rev.  Jan.,  1895,  p.  95. 

*  Chapter  553,  p.  S3. 

e  Page  92  et  seq. 


\ 

Vi  PREFACE    TO    SECOND    EDITION. 

the  statutes  of  ten  of  the  most  prominent  states,  with  amend- 
ments to  1895,  viz.:  New  York,  New  Jersey,  Pennsylvania, 
Massachusetts,  Maine,  Ohio,  Connecticut,  Maryland,  Cali- 
fornia, and  Illinois;  also,  forms  for  use  under  the  New  York 
statute. 

In  conclusion  I  respectfully  submit  this  book  to  the  profes- 
sion and  the  public  for  such  just  and  fair  criticism  as  it  may 

merit. 

BENJ.  F.  DOS  PASSOS. 

New  York  City,  N.  Y.,  Nov.  1,  1895. 


PREFACE  TO  FIRST  EDITION. 


The  subject  of  general  taxation,  for  state  and  govern- 
mental purposes,  forms,  undoubtedly,  one  of  the  leading 
questions  of  the  day. 

What  property,  what  persons  or  corporations,  shall  be 
taxed;  when,  where  and  how  taxes  shall  be  levied  and  col- 
lected, are  problems  which  have  already  consumed  much  of 
the  time,  and  perplexed  the  thoughts  of  many  leading  law- 
yers, statesmen  and  economists  in  this  country. 

But  no  satisfactory,  uniform,  logical  system  has  as  yet 
been  adopted — I  might  say,  conceived. 

Standing  alone,  as  it  were,  upon  its  own  foundations, 
based  upon  grounds  incontrovertible,  the  taxation  compre- 
hensively known  in  this  country  as  the  "collateral  inherit- 
ance tax,"  seems  to  have  evoked  the  sanction  of  all  classes 
of  writers  and  thinkers  who  have  considered  the  question. 

After  a  person  is  dead,  and  no  longer  capable  of  directing 
or  controlling  his  wealth,  the  state,  in  accordance  with  one 
of  the  fundamental  principles  of  social  organization,  steps 
in,  continues  the  ownership,  and  permits  the  owner  to  desig- 
nate either  his  direct  or  collateral  heirs,  or  even  a  total 
stranger  to  his  blood,  to  receive  his  inheritance.  Or,  if  he 
should  die  without  a  written  testament,  it  practically  accom- 
plishes the  same  results  through  general  statutes  of  descent 
and  distribution,  which  devolve  the  property  of  the  intestate 
upon  his  direct  or  collateral  heirs. 

While  it  has  been  stoutly  questioned  by  some  theorists, 
whether,  when  a  man  dies,  and  has  neither  the  power  to  con- 
trol nor  the  necessity  to  use  his  property,  it  should  not 

LAW  INHEB.  (Vli) 


Vlll  PREFACE    TO    FIRST    EDITION. 

wholly  revert  to  the  state,  the  argument  cannot  be  treated 
as  being  of  much  practical  importance. 

The  course  of  all  civilized  nations  has  definitely  settled 
the  question  in  favor  of  continuing  the  ownership. 

But,  as  the  state  becomes  the  agent,  instrument,  or  power, 
for  distributing  the  wealth  of  the  deceased,  it  seems  to  be 
conceded,  upon  the  best  possible  grounds,  that,  for  this 
service,  it  should  levy  a  tax  upon  the  property  devolving 
upon  the  heirs. 

While  the  argument  applies  almost  with  equal  force  to 
inheritances  by  direct  heirs,  and  it  has  been  so  extended  in 
England  and  by  continental  nations,  in  the  few  American 
states  which  have  so  far  adopted  this  principle  of  taxation, 
the  legislation  has  confined  the  tax  to  those  cases  where 
the  property  eventually  devolves  upon  collateral  heirs  and 
strangers  to  the  blood,  turning  over  the  property,  in  solidn, 
to  the  direct  heirs,  unincumbered  by  any  tax. 

Considering  the  support  which  this  tax  has  received  from 
writers  and  judges,  and  the  manifestly  equitable  grounds 
upon  which  it  rests,  it  is  quite  surprising  that  it  has  not  been 
adopted  in  all  of  the  states  of  the  Union.  Yet,  the  fact  is, 
that  the  collateral  inheritance  tax  exists  in  about  nine  states 
only,  all  the  federal  statutes  imposing  the  succession  and 
legacy  taxes  being  repealed.  It  was  first  introduced  by  the 
legislature  of  Pennsylvania  in  1826.  Her  example  was  fol- 
lowed by  Louisiana  in  1828,  where  the  tax  was,  however, 
restricted  to  alien  heirs,  and  subsequently  statutes  were 
passed  in  Virginia  in  1844;  North  Carolina  in  1846;  Mary- 
land, 1864;  Delaware,  1869;  New  York,  1885;  West  Vir- 
ginia, 1887,  and  finally  in  Connecticut  in  1889. 

But  there  seems  to  be  little  doubt  that  it  will  eventually 
become  a  law  in  all  of  the  states. 

A  careful  study  of  the  principles  and  decisions  established 
by  these  collateral  inheritance  tax  laws,  as  well  as  a  some- 
what extended  practical  experience  in  connection  therewith, 


PREFACE    TO    FIRST    EDITION.  IX 

convinces  me  that  within  a  very  short  period  the  legislators 
of  the  different  states  will  be  called  upon  to  consider,  inter 
alia,  three  questions  in  connection  with  this  tax: 

First. —  Whether  the  tax,  which  is  now  confined  to  col- 
laterals and  strangers  to  the  blood,  should  not  be  extended 
to  inheritances  and  distributions  to  direct  heirs;  whether,  in 
every  case,  where  a  person  receives  property  by  reason  of, 
or  flowing  from  the  death  of  another,  it  is  not  the  duty,  as 
well  as  the  policy  of  the  state,  to  levy  a  tax  upon  the  in- 
heritance. As  I  have  intimated,  the  reason  of  the  law  ap- 
plies as  forcibly  to  direct  as  to  collateral  heirs;  such  a  tax 
has  been  most  successfully  imposed  in  England;  it  is  one 
easily  levied  and  collected,  and  if  the  law  be  properly  ad- 
ministered the  tax  will  produce  a  very  handsome  revenue  to 
each  of  the  states  that  deem  it  good  policy  to  enact  it. 

Second. — Another  question  will  relate  to  exemptions  from 
the  tax  by  ecclesiastical,  eleemosynary  and  charitable  insti- 
tutions. A  careful  consideration  of  this  subject  leads  me 
to  believe  that  such  exemptions  should  be  most  strictly  cur- 
tailed and  limited,  if  not  altogether  abolished  by  constitu- 
tional provision.  Practically  two  states  only  countenance 
them,  New  York  and  Connecticut.  Such  exemptions,  unless 
carefully  restricted  to  charities  of  the  almshouse  class  or  for 
purely  public  purposes,  impair  the  efficiency  and  fairness 
of  any  system  of  taxation,  and  it  is  probably  better  that  the 
state  should  make  a  direct  gift  to  charitable  organizations 
instead  of  permitting  it  to  be  received  in  the  form  of  an  ex- 
emption. 

Third. — But  the  most  important  question  will  occur  in 
respect  to  the  amount  and  manner  of  imposing  the  tax. 
Should  there  not  be  a  law  creating  a  graduated  or  scaling 
tax,  by  which  the  small  inheritance  shall  be  made  to  bear 
a  small  burden,  and  the  tax  gradually  increased,  so  that 
when  the  state  comes  to  the  distribution  of  large  estates, 


X  PREFACE    TO    FIRST    EDITION. 

the  distributees  should  be  made  to  pay  back  to  the  people 
a  fair  and  substantial  contribution  for  the  protection  which 
the  state  has  afforded  the  possessors  in  accumulating  and 
preserving  colossal  fortunes?  A  graduated  tax  would  not 
dwarf  individual  ambition,  genius  or  exertion,  nor  could  it 
be  successfully  maintained  that  such  a  change  was  social- 
istic or  communistic  in  principle. 

The  performance  of  official  duties  in  the  district  attorney's 
office  of  the  county  of  New  York  in  connection  with  the  en- 
forcement of  this  law,  and  the  fact  that  no  treatise  exists  on 
the  subject  in  this  country,  induced  me  to  believe  that  I 
might,  in  an  humble  way,  perform  some  service  to  the  public 
and  to  the  profession  by  collecting  and  collating  all  the 
various  decisions  and  statutes  upon  this  important  subject. 
This  I  have  conscientiously  endeavored  to  do,  and  I  now 
respectfully  submit  my  work  for  fair  and  legitimate  criti- 
cism. 

BENJAMIN  F.   DOS  PASSOS. 
New  York,  September,  1890. 


TABLE  OF   CONTENTS. 


ADDENDA  ET  CORRIGENDA. 

(Page  xix.) 

LIST  OF  AUTHORS  AND  ARTICLES. 

(Page  xxi.) 

CHAPTER  I. 

HISTORY  OF  COLLATERAL  AND  DIRECT  INHERITANCE, 
LEGACY,  AND  SUCCESSION  TAXES. 


1. 

Reasons  for  Such  Taxes. 

2. 

The  Tax  Defined. 

3. 

The  Roman  Law. 

4. 

Succesi 

sion  and  Legacy  Taxes  in  England. 

5. 

The  American  Statutes. 

(a) 

Pennsylvania. 

(t» 

Louisiana. 

(c) 

Maryland. 

(d) 

Virginia. 

(e) 

North  Carolina, 

(f) 

Delaware. 

(g) 

Connecticut. 

(h) 

West  Virginia. 

0) 

New  York. 

0) 

Maine. 

(k) 

Massachusetts. 

(1) 

New  Jersey. 

(m> 

Ohio. 

(n) 

California. 

(o) 

Tennessee. 

(P) 

Illinois. 

(Q) 

Minnesota. 

(r) 

Proposed  Legislation  In  Other  States. 

LAW  INHEB.                                       (Xi) 

Xll  TABLE    OF    CONTENTS. 

§  6.    Canadian  Statutes. 

(1)  Quebec. 

(2)  Ontario. 

(3)  Nova  Scotia. 

(4)  Manitoba. 

(5)  British  Columbia. 


CHAPTER  II. 

NATURE  OF  TAX  AND  ITS  CONSTITUTIONALITY. 

7.  General  Power  of  State  over  Taxation. 

8.  Collateral,  Direct,  or  Inheritance  Tax  is  upon  the  Privilege 

of  Succession  to  Property. 

9.  Nature  of  Tax  in  New  York,  under  Act  of  1892. 

10.  A  Tax  upon  a  "Commodity"  in  Massachusetts 

11.  Under  the  Constitution  of  Minnesota. 

12.  Under  the  Federal  "Income  Tax"  of  1894. 

13.  Not  a  Property  Tax. 

14.  Not  a  Direct  Tax. 

15.  Taxing  Foreign  Real  Estate— When  Void  as  Direct  Tax. 

16.  As  to  Being  a  General  or  Special  Tax  Law. 

17.  Not  a  Poll  Tax. 

18.  As  to  Being  an  Equal  and  Uniform  Tax. 

19.  Double  Taxation. 

20.  Not  a  Taking  of  Private  Property,  etc 

21.  Need  not  State  Object  of  Tax. 

22.  As  to  Notice  and  Hearing. 

23.  Due  Process  of  Law  not  Violated. 

24.  As  to  Being  Retroactive  and  Ex  Post  Facto. 

25.  Not  a  Tax  upon  Exports  or  Commerce. 

26.  Conflicting  with  Treaties  and  Alien  Rights. 

27.  Government  Bonds  and  State  Securities. 

28.  United  States  and  Municipalities— Legacies  to— Taxable. 

29.  Legatee's  or  Owner's  Domicile  as  to  Personal  Property  and 

its  Situs. 

30.  Exemptions — When  Constitutional. 
81.    General  Questions  as  to  Jurisdiction. 


TABLE    OF    CONTENTS.  Xlll 

CHAPTER  III. 

EXEMPTIONS. 

32.  Taxation  the  General  Rule. 

33.  Policy  of  Inheritance,  Legacy,  and  Succession  Tax  Laws. 

34.  An  Enumeration  of  Statutory  Exemptions. 

(a)  New  York. 

(1)  Under  General  Tax  Laws. 

(2)  Collateral  Heirs  under  Acts  1S87  and  1892. 

(3)  Direct  or  Lineal  Heirs— Act  1892. 

(4)  Religious  and  Other  Corporations— Act  1890. 

(b)  Pennsylvania. 

(c)  Maryland. 

(d)  Virginia. 

(e)  West  Virginia. 

(f)  Delaware. 

(g)  Connecticut, 
(h)  North  Carolina, 
(i)  California. 

(j)  Maine, 
(k)  Massachusetts. 
(1)  New  Jersey, 
(m)  Ohio. 

(1)  Collateral  Heirs-Act  1893. 

(2)  Direct  or  Lineal  Heirs— Act  1894. 
(n)  Tennessee. 

(o)  Illinois, 
(p)  Minnesota. 

35.  Charitable,  Religious,  and  Other  Corporations  and  Objects. 

36.  Foreign  Corporations  and  Governments. 

37.  Adopted  Children— Mutually  Acknowledged  Relation  of  Par- 

ent and  Illegitimate  Children,  etc. 

38.  Widows,  and  Husbands  of  Deceased  Daughters. 

39.  Next  of  Kin,  Lineal  and  Lawful  Descendants. 

40.  Aliens,  Foreign  Legatees,  and  Nonresidents. 

41.  What  Estates  or  Interests  Taxable — Amounts  Limited. 

42.  Foreign  Real  Estate. 

43.  Legacies  when  Exempt  under  Acts  of  Congress. 


XIV  TABLE    OF    CONTENTS. 

CHAPTER  IV. 

ESTATES  OF  RESIDENT  AND  NONRESIDENT  DECEDENTS. 

%    44.    General  Rules  as  to  Domicile  and  Situs. 

45.  Conflict  under  These  Statutes. 

46.  Resident  Decedents,  Their  Heirs  and  Legatees. 

(a)  As  to  Personalty. 

(b)  Real  Estate  under  Doctrine  of  Equitable  Conversion. 

47.  Nonresident  Decedents,  Their  Heirs  and  Legatees. 

(a)  The  English  Rule  of  "Mobilia  Sequuntur  Personam." 

(b)  Application  of  the  Rule  in  America. 

(c)  The  Rule  as  Applied  to  Tangible  and  Intangible  Prop- 

erty. 

(d)  Where  Succession  Takes  Place,  for  Purposes  of  Tax- 

ation. 

48.  Foreign  Legacies. 

49.  Rules  Where  Nonresident  Decedent's  Debts  Exceed  Value  of 

Estate. 

CHAPTER  V. 

APPRAISER  AND  APPRAISEMENT. 

§    50.    Assessments  and  Assessors  Generally,  and  Rules  Regulating. 

51.  Appointment,  Powers,  and  Duties  of  Appraisers. 

52.  Land   and   Personal   Estate,   and   Where  Appraised— "Fair 

Market  Value." 

53.  Life  Estates,  Annuities,  Legacies,  and  Terms  of  Years. 

54.  Remainders,  Contingent,  and  Future  Estates. 

(a)  Under  Acts  of  Congress. 

(b)  In  Maryland  and  Connecticut. 

(c)  In  Pennsylvania. 

(d)  New  York. 

(1)  Provisions  of  Act  of  1892. 

(a)  Vested  Estates  and  Remainders. 

(b)  Contingent  Estates— When  not  Appralsable  at 

Death. 

(c)  May  be  Appraised  on  Vesting. 

(d)  When  Appraisable  at  Death. 

55.  Effect  of  Appraisement  and  Appeals  Therefrom. 


TABLE    OF    CONTEXTS.  XV 


CHAPTER  VI. 

VESTED   AND    CONTINGENT  ESTATES— TRANSFERS   INTER 
VIVOS  AND  CAUSA  MORTIS— POWERS  AND  LEGACIES. 

§     56.    Life  Estates,  Annuities,  Legacies,  and  Joint  Tenancies. 

57.  Relative  Rights  of  Life  Tenant  and  Remainder-Man. 

58.  Remainders,  Contingent  and  Future  Estates. 

(a)  Under  the  English  Statutes. 

(b)  Under  the  Acts  of  Congress. 

(c)  Under  New  York  Statutes  of  1885,  1887,  1892. 

(1)  Preliminary  Review  of  Early  Statutes. 

(2)  Provisions  of  Transfer  Tax  of  1892. 

(3)  Decisions  under  These  Acts. 

(a)  Vested  Estates. 

(b)  Contingent  or  Future  Estates. 

(c)  AYhen  not  Taxable  nor  Appraisable  at  Death. 

(d)  When  Appraisable  at  Death. 

(e)  Appraisable    and    Taxable    when    Vesting    in 

Possession  or  Enjoyment. 

(f)  Estates    Taxable    under    Retroactive    Clause, 

New  York  Act  of  1892. 

(d)  Under  Pennsylvania  Statutes. 

(e)  Massachusetts  Statutes. 

59.  Fraudulent   Transfers.   Trusts,   and   Gifts   Inter  Vivos  and 

Causa  Mortis. 

60.  Powers  of  Appointment. 

61.  Legacies  for  Debts  and  Other  Obligations. 


CHAPTER  VII. 

SURROGATES.     DISTRICT     ATTORNEYS,     COUNTY     TREAS- 
URERS, REGISTERS,  EXECUTORS,  AND  OTHER 
OFFICERS. 

§  62.    Surrogates,  District  Attorneys,  County  Treasurers,  Registers, 
and  Appraisers. 
63.    Executors,  Administrators,  and  Trustees. 


XVI  TABLE    OF    CONTENTS. 

S  64.    Liability  of  Executors,  Administrators,  Trustees,  Heirs,  and 
Legatees  inter  Se. 
65.    Compromises  between  Public  Officers,  Executors,  and  Lega- 
tees. 

CHAPTER   VIII. 

REMEDY  AND  PRACTICE. 

§    66.  Nature  of  Remedy  and  Actions  and  Proceedings  Thereunder. 

67.  Lien  of  the  Tax,  and  Its  Effect— Statute  of  Limitations. 

68.  Interest  and  Penalties  for  Nonpayment  of  Tax. 

69.  Retroactive,  Amendatory,  and  Repealing  Statutes. 

APPENDIX  OF  STATUTES. 

(Pages  425  to  526.) 
I.    New  York. 

II.  New  Jersey. 

III.  Penn. 

IV.  Massachusetts. 
V.    Maine. 

VI.  Ohio. 

VII.  Connecticut. 

VIII.  Maryland. 

IX.  California. 

X.  Illinois. 

APPENDIX  OF  FORMS  USED  UNDER  NEW 
YORK  STATUTE. 

(Pages  527  to  540.) 

I.  Petition  of  District  Attorney  to  Enforce  Payment. 

II.  Petition  of  Executor,  etc.,  for  Appraiser. 

III.  Petition  of  County  Treasurer  or  Comptroller  in.  New  York  City. 

IV.  Order  for  Citation. 
V.  Citation. 

VI.    Order  Appointing  Appraiser. 
VII.    Notice  of  Appraisement 


TABLE    OF    CONTENTS.  XV11 

VIII.  Appraiser's  Report. 

IX.  Surrogate's  Notice  of  Assessment. 

X.  Decree  for  District  Attorney  Assessing  and  Fixing  Tax. 

XI.  Affidavit  for  Costs  of  District  Attorney. 

XII.  Decree  for  Executor  Fixing  Tax. 

XIII.  Notice  to  Superintendent  of  Insurance. 

XIV.  Superintendent's  Report. 
XV.  Annuity  Table. 

TABLE  OF  CASES  CITED. 

(Page  541.) 

INDEX. 

(Page  561.) 

LAW  INHER.  —6  * 


ADDENDA  ET  CORRIGENDA. 


1.  The  following  cases  have  appeared  since  the  comple- 
tion of  the  text,  too  late  for  insertion : 

(a)  IN  RE  SEAMAN'S  ESTATE  (N.  Y.,  Oct.  8,  1895)  147  N.  Y. 
69,  41  N.  E.  Rep.  401,  reversing  Talmadge  v.  Seaman,  85  Hun, 
242,  32  N.  Y.  Supp.  906,  referred  to  at  page  307  et  seq.  of  the  text, 
was  reversed  upon  the  grounds: 

(1)  That  the  children  of  G.  took  vested  interests  in  the  residuary 
property,  both  real  and  personal,  at  the  death  of  the  testator,  sub- 
ject to  open  and  let  in  after-born  children,  and  to  be  defeated  by 
death  without  issue  during  the  running  of  the  life  estate. 

(2)  Subdivision  3  of  section  1  of  the  transfer  tax  act  of  1892,  con- 
taining the  words:  "Such  tax  shall  also  be  imposed  when  any  such 
person  or  corporation  becomes  beneficially  entitled,  in  possession 
or  expectancy,  to  any  property  or  the  income  thereof  by  any  such 
transfer,  whether  made  before  or  after  the  passage  of  this  act," — 
applies  to  grants  or  gifts  causa  mortis,  but  does  not  embrace  or 
render  taxable  interests  taken  under  the  wills  of  testators  dying  be- 
fore the  passage  of  the  act. 

(b)  STATE  v.  FERRIS,  referred  to  in  the  text,  will  be  reported  in 
52  Ohio  (when  issued),  and  is  reported  in  the  Northeastern  Re- 
porter, vol.  41,  p.  579. 

(c)  STATE  v.  ALSTON,  94  Tenn.  674,  30  S.  W.  Rep.  750,  upholds 
the  constitutionality  of  the  Tennessee  statute  (Acts  1893,  c.  174; 
Id.  c.  89,  §  7),  in  an  interesting  opinion  by  Wilkes,  J.:  (1)  Under 
the  well-established  rule  that  it  is  a  tax  upon  the  privilege  or  right 
of  succession;  (2)- that  a  tax  on  collateral  kindred  and  strangers, 
exempting  lineal  heirs,  is  valid,  and  not  void  for  want  of  uniformi- 
ty; (3)  that  the  statute  is  valid  as  exempting  estates  of  less  than 
$250. 

LAW  INHEB.  (Xix) 


XX  ADDENDA    ET    CORRIGENDA.. 

(d)  INHABITANTS  OF  ESSEX  v.  BROOKS  (Mass.)  41  N.  E. 
Rep.  119,  holds: 

(1)  A  legatee  in  a  common-law  action  to  recover  his  legacy  may 
have  the  question  determined  whether  his  legacy  is  subject  to  the 
legacy  tax  under  statute  of  1891. 

(2)  Legacies  to  towns  to  establish  free  public  libraries  are  exempt 
as  being  given  for  use  of  "charitable  or  educational  institutions." 

(e)  PROVINCE'S  ESTATE,  4  Pa.  Dist.  R.  591: 

The  adoption  of  a  natural  son  by  an  act  of  the  legislature  is  an 
act  of  adoption,  and  not  one  of  legitimation,  and  therefore  does  not 
exempt  the  estate  passing  from  the  father  to  such  natural  son  from 
the  collateral  inheritance  tax. 


LIST  OF  AUTHORS  AND  ARTICLES 

REFERRED  TO  IN  THIS  BOOK 

ON  THE 

INHERITANCE  TAX. 


AMERICAN. 


1.  The  Power  of  the  Legislature  over  the  Subject  of  Wills,  etc. 

By  Judge  Thomas,  of  Peun.    Post,  p.  6. 

2.  Limitations  of  the  Amount  One  may  Take  by  Descent  or  Will. 

H.  B.  Hurd,  Esq.    Post,  p.  6. 

3.  The  Taxing  Power;   Its  Constitutional  Limitations,  Restraints, 

and  Requirements.    Post,  p.  30. 

4.  The  Nature  and  Constitutionality  of  the  Inheritance  Tax.    32 

Am.  Law  Reg.  (N.  S.)  364. 

5.  Taxation  in  American  States  and  Cities.    R.  T.  Ely.    Post,  p.  6. 

6.  The  Inheritance  Tax.    By  May  West,  N.  Y.,  1893. 

7.  Scott's  Intestate  Laws,  Penn.,  1871. 

8.  Hilliard  on  Taxation,  195. 

9.  Double  Taxation.    5  Political  Science  Quarterly,  Dec,  1890. 

10.  Exemptions  of  Religious  Corporations.    19  Abb.  N.  C.  231. 

11.  Exemption  of  Public  Charities  in  Penn.    By  John  M.  Gest,  Esq., 

post,  p.  Ill  (note);   by  C.  B.  Penrose,  Esq.,  post,  p.  142  (note). 

12.  Review  of  Legislation  in  Penn.  upon  Illegitimates.    Post,  p.  130. 

13.  Article  on  Nonresidents,  etc.    By  John  A.  McCarthy,  Esq.    32 

Am.  Law  Reg.  (N.  S.)  April,  1893,  p.  365. 

14.  Collateral   Inheritance  Tax  in   Connection   with  Transfers   of 

Stocks  and  Loans  by  Foreign  Executors,  etc.    By  H.  Blanc, 
Esq.    45  Alb.  Law  Jour.,  April  16,  1892,  p.  331. 

15.  Collateral  Inheritance  Tax;    Conversion  of  Land  Outside  of 

State.    By  H.  W.  Page,  Esq.    32  Am.  Law  Reg.  (N.  S.)  472. 

LAW  INHEB.  (XXi) 


XX11  LIST    OF    AUTHORS    AND    ARTICLES    REFERRED    TO. 

16.  The  Act  to  Tax  Inheritances.    44  Alb.  Law  Jour.,  Dec.  12,  1891, 

p.  478. 

17.  Note  on  Collateral  Inheritance  Tax.    Post,  p.  18. 

18.  Note  on  Contingent  Remainders.    By  A.  Abbott,  Esq.    19  Ab- 

bott's N.  C.  234;  24  Id.  365. 

19.  Note  on  Vested  Estates.    18  Abb.  N.  C.  300. 

20.  Annual  Uessages  of  Gov.  Hill,  1890,  1891.    Post,  p.  20. 

21.  Revenue  Derived  from  the  Tax  by  Different  States.    Post,  p.  21 

(note). 

ENGLISH  WRITERS. 

1.  Estate  Duty  and  Succession  Duty.    J.  E.  C.  Munro,  London, 

1894.    Post,  p.  11. 

2.  Tax  on  Successions  and  Burdens  on  Land.    Peter  B.  Brodie, 

London,  1S90. 

3.  A  Handbook  to  the  Death  Duties.    Sydney  Buxton,  London, 

1S90. 

4.  A  Treatise  on  Legacy  Duty,  etc. ;  the  Law  of  Domicile.    Patrick 

Lenaghan,  London,  1850. 

5.  Taxes  on  Successions.    Ch.  C.  Trevor,  London,  1881. 

6.  Epitome  of  Death  Duties.    Robt.  J.  Wallace,  London,  1886. 

7.  Layton,  Legacy  Duties,  etc.  (9th  Edition).    London,  1S92. 

8.  History  of  Taxation,  etc.,  in  England  (3  vols.).    Dowell. 

9.  The    New    Death    Duties    in    England.    Earl    of    Wenchelsea, 

North  American  Rev.,  Jany.,  1895,  p.  95. 
10.    Statesman's  Year  Book,  1893. 


LAW 

OF 

COLLATERAL  AND  DIRECT  INHERITANCE, 
LEGACY,  AND  SUCCESSION  TAXES. 


SECOND  EDITION. 


CHAPTER  I. 


HISTORY  OF  COLLATERAL  AND  DIRECT  INHERITANCE 
LEGACY,  AND  SUCCESSION  TAXES. 


1. 

Reasons  for  Such  Taxes. 

2. 

The  Tax  Defined. 

3. 

The  Roman  Law. 

4. 

Succession  and  Legacy  Taxes  in  England. 

5. 

The  American  Statutes. 

(a) 

Pennsylvania. 

(b) 

Louisiana. 

(c) 

Maryland. 

(d) 

Virginia. 

(e) 

North  Carolina, 

(f) 

Delaware. 

(g) 

Connecticut. 

(h) 

West  Virginia. 

(i) 

New  York. 

CJ) 

Maine. 

(k) 

Massachusetts. 

(1) 

New  Jersey. 

(ml 

Ohio. 

(n) 

California. 

LAW  IN  HER. 1 

§    1  COLLATERAL    INHERITANCE,  ETC.,  TAXES.  £Cll.    1 

5.  The  American  Statutes- Continued. 

(0)  Tennessee, 
(p)    Illinois, 
(q)    Minnesota. 

(r)    Proposed  Legislation  in  Other  States. 

6.  Canadian  Statutes. 

(1)  Quebec. 

(2)  Ontario. 

(3)  Nova  Scotia. 

(4)  Manitoba. 

(5)  British  Columbia. 


§  1.     Reasons  for  Such  Taxes. 

The  system  or  policy  of  taxing  collateral  and  direct  in- 
heritances, legacies,  and  successions  is  not  of  modern  origin. 
Laws  relating  to  these  taxes  were  in  force  among  the  Ro- 
mans, and  perhaps  even  earlier.  In  modern  times  such 
laws  will  be  found  in  full  operation  in  many  European  coun- 
tries. These  duties  or  excises  are  in  force,  as  a  most 
fruitful  source  of  revenue,  among  all  European  states. 
They  exist  in  Germany,  Austria,  France,  Switzerland  and 
its  cantons,  Holland,  Russia,  Italy,  Spain,  Portugal,  Greece, 
Denmark,  and  Sweden,  and  other  states.  The  tax  is  also 
imposed  in  the  Australian  colonies,  and  has  recently  been 
put  into  effect  in  the  Canadian  provinces.  It  also  exists 
in  Chili  and  Guatemala.  They  have  existed  in  England 
for  over  a  century,  with  uniform  success.  Their  utility,  as 
a  successful  means  of  revenue,  has  been  strongly  approved 
by  writers  on  political  economy,1  and  by  jurists.2      In  view 

i  Smith,  Wealth  Nat.  pp.  6S3,  6S4;  Mills,  Polit.  Fcou.  bk.  5,  c.  2,  §  3. 

2  Mr.  Justice  Brewer,  of  the  United  States  supreme  court,  says  of 
this  tax  in  a  letter  to  the  author:  "I  was  not  aware  until  such  exam- 
ination of  the  extent  to  which  in  this  country  the  matter  of  taxation 
on  successions  has  advanced.  I  have  often  urged  that  as  one  of  the 
most  just  of  taxes,  and,  if  it  were  graduated  in  proportion  to  the 
amount  of  property  passing,  I  think  it  would  be  most  beneficial.    It 

(2) 


Ch.    1]  COLLATERAL    INHERITANCE,   ETC.,  TAXES.  §    1 

of  these  facts,  it  would  appear  to  be  somewhat  remark- 
able that  this  tax  was  not  suggested  nor  applied  in  the 
state  of  New  York,  by  the  legislature,  as  a  method  of  tax 
ation,  until  the  year  1SS5,  more  than  GO  years  after  its  suc- 
cessful adoption  in  Pennsylvania  and  other  states.  Since 
then  New  York  has  improved  her  system;  as,  by  an  act 
passed  in  1892,3  known  as  the  "Transfer  Tax  Act,"  she 
now  taxes  both  lineal  and  collateral  heirs;  and  the  state 
of  Ohio,4  by  acts  passed  in  1893  and  1S94,  has  adopted  sim- 
ilar laws,  although  that  upon  direct  or  lineal  heirs  has  re- 
cently been  declared  unconstitutional.5  A  tax  is  also  im- 
posed upon  both  direct  and  lineal  heirs  in  Illinois.6  Some 
eminent  writers  have  favored  these  laws  in  their  utmost 
severity,7  because  they  are  said  to  tend  to  distribute  wealth 
from  the  hands  of  the  few  to  the  many,  and  for  the  addition- 
al reason  that  they  tend  to  compel  individuals  to  rely  more 
upon  their  own  exertions.  This,  at  least,  is  the  demon- 
strated economical  effect  of  such  laws.8  As  the  theories 
of  leading  economists  have  been  treated  with  great  consid- 
eration by  legal  writers  on  general  taxation,9  it  would  seem 
that  their  views  are  equally  entitled  to  respect  upon  this 
subject. 

would  teud  largely  to  prevent  the  accun  ulation  of  property  in  a  fam- 
ily line,  and  to  work  that  distribution  which  is  for  the  interest  of  all." 

"I  do  not  at  all  criticise  the  wisdom  of  the  law  which  imposes  a  tax 
upon  the  succession  of  collaterals  to  estates  which  usually  they  did 
not  help  to  earn,  and  very  often  do  not  deserve.  On  the  contrary,  I 
deem  the  law  thoroughly  just  and  wise."  Finch,  J.,  In  Re  Curtis,  142 
N.  Y.  223,  36  N.  E.  887. 

3  Chapter  399,  Appendix,  I.  e,  and  amendments  to  1895. 

*  Statutes,  Appendix,  VI. 

e  Chapter  2,  §  18. 

e  See  statute,  Appendix,  X. 

7  But  see  Cooley,  Tax'n  (2d  Ed.)  30. 

8  Mills,  Polit.  Econ.  supra. 

»  Cooley,  Tax'n  (2d  Ed.)  8-12. 

(3) 


§    1  COLLATERAL    INHERITANCE,  ETC.,  TAXES.  (_Ch.    1 

In  England,  where  landed  property  has  always  been  more 
or  less  locked  up  by  a  complicated  system  of  tenures  and 
entails,  and,  under  the  rule  of  primogeniture,  is  confined 
to  the  hands  of  the  few,  and  where  personal  property  is 
hoarded  by  the  nobility  and  large  corporations,  and  the 
general  tendency  is  to  centralize  wealth,  these  reasons  ap- 
ply, perhaps,  with  superadded  force.  The  claim  is  recently 
made,  however,  that  the  burden  of  the  English  system  im- 
posed by  the  succession,  legacy,  probate,  and  other  duties 
known  generally  as  "Death  Duties"  falls  most  severely  upon 
land.10 

In  this  country,  however,  where  land  is  widely  distrib- 
uted, and  unquestionably  bears  the  brunt  and  burden  of 
taxation  (generally  to  an  excessive  degree  in  proportion  to 
what  is  collected  from  personal  property),  the  same  reasons 
would  seem  to  fail  of  application. 

Personal  property,  however,  in  proportion  to  its  immense 
value,  generally  escapes  the  hands  of  the  collector,  and  in 
some  localities — especially  in  large  cities — to  an  alarming 
extent.11 

However  minute  and  comprehensive  the  law  applicable 
to  the  collection  of  this  tax,  a  consensus  of  opinion  seems  to 
prevail  that  the  hiding  of  such  property,  and  the  adopting 
of  any  dishonorable  method  to  evade  the  duty,  are  matters 
for  congratulation  on  the  part  of  the  citizen. 

For  this  reason,  in  particular,  and  owing  not  so  much 
to  the  faulty  condition  of  the  law,  a  large  percentage  of 
personal  property  annually  escapes  taxation  in  the  United 
States;  and  any  system  that  effectually  reaches  any  por- 
tion of  this  property  deserves  commendation  and  study. 

A  collateral  or  direct  inheritance,  legacy,  or  succession 

10  See  an  article  entitled  "The  New  Death  Duties  in  England."  by 
the  Earl  of  Winchelsea  and  Nottingham,  North  Am.  Rev.  Jan.,  1S95, 
p.  95. 

ii  Ely,  Tax'n,  p.  177. 

(4) 


Ch.    1]  COLLATERAL    INHERITANCE,  ETC.,  TAXES.  §    2 

tax,  it  seems,  presents  the  most  complete  system  for  reach- 
ing the  class  of  personal  property  and  privileges  which  it  is 
framed  to  embrace,  because  its  collection  is  aided  and  facili- 
tated by  the  requirement  of  the  law  that  a  dead  man's  prop- 
erty, so  to  speak,  shall  somewhere  and  at  some  time  pass 
through  either  a  surrogate  or  probate  court,  as  the  case  may 
be,  for  settlement  and  distribution. 

Here  it  is  generally  presented  to  the  public  view  upon 
the  records;  there  is  not  so  much  opportunity  for  secrecy; 
and  thus  it  is  brought  within  easy  reach  of  the  taxing  state 
or  community. 

§  2.     The  Tax  Defined. 

Any  exact  definition  of  the  collateral  inheritance  or  suc- 
cession tax  must  necessarily  depend  upon  the  language  of 
the  particular  statute  which  may  be  under  consideration. 
It  will  be  observed,  however,  that,  so  far  as  this  country 
is  concerned,  there  is  a  general  similarity  between  the  dif- 
ferent enactments  defining  the  tax  and  those  included  with- 
in and  exempt  from  the  operation  of  its  provisions.  From 
the  similarity  existing  between  the  Pennsylvania  and  New 
York  laws,  the  decisions  of  the  courts  of  the  former  state, 
embracing  a  period  of  over  60  years,  will  be  found  on 
this  account  to  be  of  much  importance  as  precedents  up- 
on the  many  questions  that  may  arise. 

The  tax  may  be  defined  generally  to  be  a  burden  imposed 
by  government  upon  all  gifts,  legacies,  inheritances,  and 
successions,  whether  of  real  or  personal  property,  or  both, 
or  any  interest  therein,  passing  to  certain  persons  (other 
than  those  specially  excepted)  by  will,  by  intestate  law,  or 
by  any  deed  or  instrument  made  inter  vivos,  intended  to 
take  effect  at  or  after  the  death  of  the  grantor. 

The  theory  of  the  promoters  of  direct  inheritance  and 
collateral  tax  legislation  is  based  both  upon  logical  and 
legal  ground;  i.  e.  that  what  is  generally  understood  as  the 

(5) 


§   2  COLLATERAL   INHERITANCE,  ETC.,  TAXES.  [Ch.    1 

right  to  take  by  will  or  from  intestates  is,  after  all,  but  a 
mere  privilege  of  the  municipal  law,  to  be  changed,  modi- 
fied, or  repealed  in  the  discretion  of  the  state,  and  not  a 
natural  right,12  and  that  it  is  only  just  and  proper,  in  con- 
sideration of  this  privilege,  that  property  passing  by  will 
to  lineals  and  collaterals,  remote  relatives,  strangers  to  the 
blood,  and  corporations,  or,  through  intestate  laws,  to  col- 
laterals and  relatives  having  for  the  most  part  no  particular 
claim  whatever  upon  the  decedent,  should  pay  to  the  state 
conferring  this  valuable  privilege  a  fair  and  reasonable 
bonus  or  percentage  upon  the  value  of  the  property  thus 
transmitted  and  received.  Hence  these  laws  have  been 
adjudged  by  the  best  authorities  to  impose,  not  a  mere 
property  tax,  as  claimed  by  some,  but  simply  a  tax,  duty, 
or  excise  upon  the  devolution  or  succession  of  property  un- 
der inheritance  and  intestate  laws.  Upon  this  ground  such 
taxes  have  uniformly  been  held  to  be  constitutionally  valid, 
both  under  the  federal  and  state  constitutions; 13  and  it 
has  been  held  that  the  tax  is  not  like  an  ordinary  tax, — it  is 

121  Bl.  Comm.  bk.  2,  pp.  11,  12.  See  "Forum"  for  December,  18S6; 
article  by  Judge  Thomas,  of  Pennsylvania,  upon  "The  Power  of  the 
Legislature  Over  the  Subject  of  Wills,"  etc. 

Prof.  R.  T.  Ely,  in  "Taxation  in  American  States  and  Cities"  (page 
519),  gives  in  full  a  bill  which  he  approves,  and  which  was  presented 
in  the  Illinois  legislature  in  1887,  to  reform  the  statutes  of  descent 
and  wills.  Its  object  is  sweeping,  being  to  restrict  the  amount  any 
person  or  corporation  may  take  from  the  same  decedent,— wife  or  hus- 
band, not  over  $500,000;  child,  etc.,  not  over  $500,000;  remote  rela- 
tives and  others,  not  over  $100,000. 

Such  legislation  would  appear  impracticable,  or,  at  least,  not  con- 
sistent with  the  freedom  of  American  institutions  where  private 
rights  and  property  are  concerned,  though  it  has  been  indorsed  by 
Mills  (Polit.  Econ.  bk.  5,  c.  9,  §  1),  who  agreed  that  collateral  heirs 
should  be  entirely  excluded  (Id.  bk.  2,  c.  11,  §  3).  See,  also,  an  article 
entitled  "Limitations  of  the  Amount  One  May  Take  by  Descent  or  by 
Will,"  by  H.  B.  Hurd,  Esq.,  4S  Alb.  Law  J.  Sept.  23,  1S93,  p.  24L 

is  See  chapter  2,  §§  8,  25,  27. 

(6), 


Ch.   1]  COLLATERAL    INHERITANCE,  ETC.,  TAXES.  §    3 

not  exactly  a  penalty, — but  is  more  in  the  nature  of  an  as- 
sessment.14 

It  is  not  a  forfeiture,  because  that  presupposes  an  of- 
fense.15 No  matter  what  it  may  be  called,  or  upon  what 
interests  imposed,  no  tax  can  be  less  burdensome,  and  in- 
terfere less  with  the  productive  and  industrial  agencies  of 
society;16  and,  when  the  subject  is  fairly  considered,  no 
substantial  objection  presents  itself  for  not  applying  the 
tax  rigidly  upon  all  interests,  testate  and  intestate.  Possi- 
bly, small  estates,  widows,  and  purely  public  and  private 
charitable  institutions  or  almshouses  for  the  gratuitous 
relief  of  the  poor,  sick,  and  helpless  should  in  all  cases  be 
exempt. 

§  3.     The  Roman  Law. 

The  origin  of  the  collateral  inheritance  or  succession  tax 
is  plainly  traceable  to  the  Roman  civil  law.  Some  writers 
claim  it  antedates  that  law.  Gibbon,  the  historian,  says 
that  it  was  suggested  by  the  Emperor  Augustus  to  the 
senate,  for  the  support  of  the  Roman  army;  that  it  was  im- 
posed at  the  rate  of  5  per  cent,  upon  all  legacies  or  in- 
heritances of  a  certain  value;  but  that  it  was  not  exacted 
from  the  nearest  relatives  on  the  father's  side;17  and  that 
the  tax  was  the  most  fruitful,  as  well  as  the  most  com- 

14  Strode  v.  Com.,  52  Pa.  St.  182. 

isArnaud's  Heirs  v.  His  Executor,  3  La.  337;  Quessart's  Heirs  v. 
Canonge,  3  La.  560;  In  re  Vanderbilt's  Estate  (Surr.)  10  N.  Y.  Supp. 
239;    Carpenter  v.  Pennsylvania,  17  How.  (U.  S.)  462. 

16  In  re  McPherson,  104  N.  Y.  316,  10  N.  E.  685. 

i7l  Gibb.  Rome,  p.  133.  Dion  Cassius  (liber  55)  says:  "It  was  im- 
posed upon  all  successions,  etc.,  except  those  to  the  nearest  relatives 
and  to  the  poor."  It  is  also  mentioned  by  Pliny,  Panegyricus,  c.  37. 
See  21  Enc.  Britt.  (8th  Am.  Ed.;  Little,  Brown  &  Co.)  "Taxation," 
p.  65. 

(7) 


§    4  COLLATERAL    INHERITANCE,   ETC.,  TAXES.  [Cll.    1 

prehensive.18      It  was  called  "Vicesinia  hereditatum  et  leg- 
atorum." 

§  4.     Succession  and  Legacy  Taxes  in  England. 

In  England  the  legacy  tax  is  said  to  have  been  first 
brought  to  public  notice  byAdam  Smith.19  There  is  reason- 
able ground  for  claiming,  however,  that  what  was  substan- 
tially an  inheritance  or  succession  tax  also  existed  under 
the  feudal  system,  especially  in  the  exactions  which  were 
made  by  the  feudal  lords  of  what  are  known  as  reliefs  and 
primer  seisins,  in  which  the  heir  or  successor  was  compelled 
to  pay  a  certain  sum,  or  perform  a  certain  service,  before 
he  could  be  invested  with  the  estates  of  his  ancestor.20 
While  the  statutes  in  this  country,21  as  a  general  rule,  cover 
in  one  law  all  property  passing  to  collaterals,  etc.,  by  will 
and  by  instrument  inter  vivos,  to  take  effect  at  or  after  the 
death  of  the  grantor,  whether  of  real  or  personal  property, 
in  England  legacy  and  succession  taxes  are  imposed  under 
independent  statutes. 

Only  legacies  of  personal  property  were,  at  first,  taxed  in 
that  country.  Successions  to  real  property,  to  which  the 
term  is  more  accurately  restricted,22  were  not  made  liable 
until  the  year  1853.  The  English  legacy  act  originated, 
in  1780,  with  Lord  North,  whose  attention,  it  is  stated, 
was  drawn  to  the  Roman  and  Holland  systems  by  Adam 
Smith's  book.23 

isl  Gibb.  Rome,  p.  134.    See,  also,  Williams'  Case  (1827)  3  Bland.  259. 

is  Smith,  Wealth  Nat.  pp.  683,  684. 

20  Bl.  Comm.  (Shars.  Ed.)  bk.  2,  *66-*68;  Smith,  Wealth  Nat.  p. 
684;    Ely,  Tax'n,  32. 

2i  See  Appendix,  where  10  of  the  most  important  state  statutes 
are  given  in.  full. 

22  Blake  v.  McCartney,  4  Cliff.  101,  Fed.  Cas.  No.  1,49S. 

233  Dow  ell,  Hist.  Tax'n,  14S.    Gibbon's  History  was  published  be- 

(8) 


(Jh.    1]  COLLATERAL    INHERITANCE,   ETC.,   TAXES.  §    4 

As  this  act  did  not  apply  to  devolutions  of  real  property, 
but  was  a  species  of  stamp  tax  upon  receipts  given  for  any 
legacy  or  share  of  the  personal  property  of  a  decedent, 
and,  being  easily  evaded,  it  was  not  a  great  source  of 
revenue,  particularly  as  where  no  receipt  could  be  given 
no  tax  could  be  imposed; 24  so  that,  in  1796,  Pitt  adopted 
the  Roman  system,  as  modified  in  Holland,  by  endeavoring 
to  have  all  successions  taxed.  He  clearly  discerned  the 
effect  of  such  a  law  upon  the  revenues  of  the  kingdom,  if 
it  could  be  applied  to  real  estate  and  kindred  property; 
but  the  act,  as  proposed  to  parliament,  seems  to  have  met 
with  opposition,  for,  as  finally  passed,  it  only  applied  to 
personal  property  and  shares  given  under  the  statute  of 
distributions.  By  later  statute  it  was  extended  to  dona- 
tiones  mortis  causa.25  Finally,  in  1853,  by  the  succes- 
sion duty  act,26  a  new  law  came  in  force,  taxing  all  succes- 
sions to  real  property,  chattels  real,  and  a  vast  variety  of 
personal  property  and  rights  not  reached  by  the  legacy  act. 
This  law  owed  its  existence  to  the  exertions  of  Gladstone, 
and  to  a  certain  extent  displaces  the  legacy  act,  though, 
curiously  enough,  it  has  been  held  that,  where  the  legacy 
tax  may  not  be  imposed,  the  estate  passing  may  neverthe- 
less be  liable  to  succession  duty,  and  under  some  circum- 
stances to  both.27 

The  act  of  Victoria  is  minute  in  its  details,  contains  elab- 
orate tables  for  the  purpose  of  establishing  the  value  of 

tween  1776  and  1780;  Smith's  work  in  1776;  but  it  is  just  as  likely, 
as  Gibbon  held  office  as  secretary  under  Lord  North,  that  the  latter 
received  his  ideas  from  the  former. 

24  Green  v.  Croft,  2  H.  Bl.  30. 

26  36  Geo.  III.  c.  52,  §  7;  8  &  9  Vict.  c.  76,  §  4;  44  Vict.  c.  12,  §  38. 

2«  16  &  17  Vict.  c.  51. 

2T  Attorney  General  v.  Cleave,  31  Law  T.  (N.  S.)  86;  Attorney  Gen- 
eral v.  Littledale,  L.  R.  5  Exch.  275. 

(9) 


§    4  COLLATERAL   INHERITANCE,  ETC.,   TAXES.  [Ch.   1 

annuities  and  other  interests  under  it  and  under  the  legacy 
act,28  and  seems  to  tax  every  conceivable  interest  accruing 
either  by  last  will  and  testament,  intestate  laws  and  acts 
inter  vivos,  and  is  in  some  instances  both  prospective  and 
retroactive.29  Altogether  it  presents  a  most  admirable  sys- 
tem of  taxation.30 

There  would  seem  to  be,  as  a  general  rule,  no  exceptions 
allowed  under  this  act,  even  charitable  corporations  be- 
ing taxed; 31  but,  under  the  legacy  act,  legacies  to  husbands 
and  wives  are  not  taxed.  The  law  was  the  same  under 
the  legacy  act  of  congress.  The  succession  duty  act  is 
more  comprehensive  in  these  respects  than  any  of  the  stat- 
utes existing  in  this  country,  because  its  effects  are  sweep- 
ing, including  not  only  strangers  and  collaterals,  but,  as 
w7e  have  said,  lineal  heirs  in  the  ascending  and  descending 
line.32  The  percentage  of  the  tax  is  justly  graduated  from 
1  to  10  per  cent,  which  latter  sum  is  assessed  upon  shares 
to  strangers  to  the  blood  and  remote  relatives.33 

The   succession  tax  is  not  imposed  upon  estates  under 

2  8 16  &  17  Vict.  c.  51.  §  31. 

2  9  Attorney  General  v.  Fitzjohn,  2  Hurl.  &  N.  465;  Wilcox  v.  Smith, 
26  Law  J.  Ch.  596;  Attorney  General  v.  Middleton,  3  Hurl.  &  N.  125. 

30  The  English  statutes  are  collated  in  Trev.  Tax.  Sue.  (4th  Ed.,  Lon- 
don) p.  299  et  seq. 

si  16  &  17  Vict.  c.  51,  §  16. 

32  Layton,  in  speaking  of  the  act,  says:  "The  provisions  are  of  a 
most  comprehensive  and  searching  character,  so  much  so  that  it  is 
difficult  to  imagine  a  transaction  or  dealing  with  property,  to  take  ef- 
fect upon  a  death  after  the  19th  May,  1S53,  that  will  elude  its  opera- 
tion, general  or  special."     Leg.  &  Sue.  Dut.  (7th  Ed.)  p.  110. 

33  "The  principle  of  graduation  (as  it  is  called),— that  is,  of  levying 
a  larger  percentage  on  a  larger  sum,— though  its  application  to  gen- 
eral taxation  would  be,  in  my  opinion,  objectionable,  seems  to  me 
both  just  and  expedient  as  applied  to  legacy  and  inheritance  duties." 
Mills,  rolit.  Econ.  bk.  5,  c.  11,  §  3. 

(10) 


Ch.   1]  COLLATERAL   INHERITANCE,  ETC.,  TAXES.  §    4 

£300, 34  and  the  legacy  duty  is  not  imposed  when  the  per- 
sonal property  is  under  £100.35 

That  these  taxes,  when  applied  under  well-drafted  laws, 
may  be  made  wonderfully  remunerative  to  the  state,  and 
must  lessen  the  general  burden,  is  easily  demonstrated  by 
the  fact  that  the  English  government  now  derives  an  enor- 
mous revenue  from  their  enforcement.36  The  law,  however, 
is  still  said  to  be  open  to  revision.37 

The  duty  has  been  increased  and  extended  by  other  stat- 
utes.38 

The  act  of  1889  fixed  an  entirely  new  duty,  viz.  a  fixed  1  per 
cent,  estate  duty  upon  the  capital  value  of  estates  exceed- 
ing £10,000  in  value.  This  act  expires  June  1,  1896,  and  is 
said  to  be  somewhat  experimental;  and  by  the  "finance  act," 
passed  in  1891,  a  further  tax  has  been  imposed  of  1  per  cent, 
upon  real  estate  and  personal  property  of  the  value  of  £10,- 
000  and  upward.39     This  is  a  substitute  for  the  estate  duty. 

a*  44  Vict.  c.  12,  §  36;  16  &  17  Vict.  c.  51,  §  18. 

3  5  43  Vict.  c.  14,  §  13. 

se  in  1SS1  it  amounted  to  £3,592,777;  in  1SS2,  £3,540,5S5;  and  in 
1883,  £3,536,238,  or  nearly  $18,000,000. 

3  7  3  Dow  ell,  Hist.  Tax'n,  p.  155. 

ss  See  Act  1SSS,  51  Vict.  c.  8;  Act  18S9,  52  Vict.  c.  7,  "Estate  Duty"; 
57  &  5S  Vict.  (1S94)  c.  30,  "The  Finance  Act." 

3  9  See  these  acts  discussed,  in  a  brochure,  entitled  "Estate  Duty  and 
Successive  Duty,"  by  J.  E.  C.  Munro,  Esq.,  London,  1894.  The  inter- 
ested reader  may  also  consult  the  following  authors  upon  the  English 
acts: 

(1)  Brodie,  Peter  B.  Tax  on  Successions  and  Burdens  on  Land. 
London.    1890. 

(2)  Buxton,  Sydney.  A  Handbook  to  the  Death  Duties.  London. 
1890. 

(3)  Lenaghan,  Patrick.  A  Treatise  on  Legacy  Duty,  etc.;  the  Law 
of  Domicile.    London.    1850. 

(4)  Trevor,  Ch.  C.    London.    1881. 

(5)  Wallace,  Robt.  J.    Epitome  of  Death  Duties.    London.     1886. 

(6)  Lay  ton.    Legacy,  etc.;    Duties.    9th  Ed.    London.    1892.    (This 

(11) 


§    4  COLLATERAL    INHERITANCE,   ETC.,  TAXES.  [Ch.    1 

The  tax  is  said  to  bear  heavily  and  severely  upon  land, 
and  it  has  been  criticised  upon  this  ground.40 

The  revenue  derived  from  the  probate,  legacy,  and  succes- 
sion and  estate  duties,  in  England,  is  enormous,  amount- 
ing to  over  £11,000,000  annually.41  Payment  of  the  tax  is 
secured  by  provisions  which  not  only  make  the  duty  a  first 
charge  or  lien  on  the  property,  as  well  as  a  debt  to  the  crown 
from  the  successor,  but  also  make  all  persons  accountable 
to  the  crown  for  the  duty, — such  as  trustees  and  executors. 
We  have  given  a  few  excerpts  from  these  acts  in  the  notes.42 

is  an  excellent  work.  It  contains  a  full  account  of  all  death  duties 
exacted  under  the  English  law.) 

(7)  Dowell.    History  of  Taxation  and  Taxes  in  England. 

40  See  article  "The  New  Death  Duties  in  England,"  by  the  Earl  of 
Winchelsea  and  Nottingham,  North  Am.  Rev.  Jan.,  1895,  p.  95. 

4i  See  Finance  Accounts  1889-90,  p.  17;  Id.  1890-91,  p.  19;  Report 
Com'rs  Int.  Rev.  1891,  p.  19;  Statesman's  Year  Book  1893,  p.  43; 
"The  Inheritance  Tax,"  by  Max  West,  N.  Y.,  1893,  p.  41. 

42  3  Dowell,  Hist.  p.  152;  1G  &  17  Vict.  c.  51,  §§  42,  44.  For  the  Eng- 
lish statutes  and  decisions  thereon,  also  consult  3  Fish.  Har.  Dig. 
5416-5430;  4  Fish.  Har.  Dig.  7480;  6  Fish.  Com.  Law  Dig.  631.  The 
"Legacy  Act"  (55  Geo.  III.  c.  184)  makes  the  following  rates  payable 
on  legacies  and  the  residue  of  personal  estate  and  real  estate  directed 
to  be  sold,  whether  the  title  to  such  residue  accrues  by  virtue  of  any 
testamentary  dispositions  or  upon  a  partial  or  total  intestacy,  wheth- 
er the  amount  is  £20  or  upward: 

(1)  Children  of  their  descendants,  or  parents,  or  other  lineal  ances- 
tors, f  1  per  cent. 

(2)  Brothers  or  sisters,  or  their  descendants,  £3  per  cent. 

(3)  Brothers  or  sisters  of  fathers  and  mothers,  or  their  descendants, 
£5  per  cent. 

(4)  Brothers  or  sisters  of  grandmothers,  etc.,  £6  per  cent. 

(5)  Persons  of  any  degree  of  collateral  consanguinity,  or  strangers 
to  the  blood,  £10  per  cent. 

See  36  Geo.  III.  c.  52;  45  Geo.  ni.  c.  28. 

The  "Succession  Duty  Act"  of  1853  (16  &  17  Vict.  c.  51.  See,  also, 
51  Vict.  c.  8;  52  Vict.  c.  7)  provides  as  follows:  "Every  past  or  future 
disposition  of  property  by  reason  whereof  any  person  has  or  shall  be- 
come beneficially  entitled  to  any  property  or  the  income  thereof  upon 
(12) 


Cb.    1]  COLLATERAL    INHERITANCE,  ETC.,  TAXES.  §    5 


§  5.  The  American  Statutes. 

As  has  been  said,  collateral  inheritance,  succession,  and 
lineal  tax  laws  now  exist  in  the  states  of  Pennsylvania, 
Maryland,  Illinois,  Virginia,  West  Virginia,  New  York  (di- 

the  death  of  any  person  dying  after  the  time  appointed  for  the  com- 
mencement of  this  act,  either  immediately  or  after  interval,  either 
certainly  or  contingently,  and  either  originally  or  by  way  of  substitu- 
tive limitation,  and  every  devolution  by  law  of  any  beneficial  interest 
in  property  or  the  income  thereof  upon  the  death  of  any  person  dying 
after  the  time  appointed  for  the  commencement  of  this  act,  to  any 
person  in  possession  or  expectancy,  shall  be  deemed  to  have  conferred 
or  to  confer,  on  the  person  entitled  by  reason  of  any  such  disposition 
or  devolution,  a  'succession,'  and  the  term  'successor'  shall  denote  the 
person  entitled,  and  the  term  'predecessor'  shall  denote  settlor,  dis- 
pones testator,  obligor,  ancestor,  or  other  person  from  whom  the  in- 
terest of  the  successor  is  or  shall  be  derived." 

Joint  tenants  taking  by  survivorship  are  deemed  successors,  and  suc- 
cessions are  conferred  by  general  powers  of  appointment.  Persons 
entitled  to  real  estate,  subject  to  life  leases,  are  not  liable;  and  dis- 
positions with  a  reservation  of  benefit  to  the  grantor,  etc.,  or  to  take 
effect  at  periods  depending  on  death,  or  made  to  evade  the  duty,  are 
liable. 

The  following  are  the  rates  of  duty: 

(1)  Where  "successor"  is  the  lineal  issue  or  lineal  ancestor  of  pred- 
ecessor, £1  per  cent. 

(2)  Where  he  is  brother,  sister,  or  descendant  of  brother  or  sister  of 
predecessor,  £3  per  cent. 

(3)  Where  he  is  brother  or  sister  of  father  or  mother,  or  descendant 
of  brother  or  sister  of  father  or  mother,  etc.,  £5  per  cent. 

(4)  Where  he  is  brother  or  sister,  or  grandmother  or  grandfather,  or 
descendant  of  brother  or  sister  of  grandfather  or  grandmother  of 
predecessor,  £6  per  cent. 

(5)  Where  he  stands  in  any  other  degree  of  collateral  consanguinity 
to  the  predecessor,  or  is  a  stranger  in  blood  to  him,  £10  per  cent. 

(G)  Succession  subject  to  trusts  for  charitable  or  public  purposes  are 
liable  to  £10  per  cent. 

For  tables  calculating  legacy  and  succession  duties  under  above 
acts,  see,  also,  Theob.  Wills  (3d  Ed.)  614. 

(13) 


§   5  COLLATERAL    INHERITANCE,   ETC.,  TAXES.  [Ch.    1 

rect  and  collateral),  Connecticut,  Delaware,  and  Ohio  (direct 
and  collateral),  and  were  for  a  time  in  force  in  North  Caro- 
lina and  Louisiana.43  The  collateral  inheritance  tax  laws 
have  also  been  put  in  force  in  Maine,  Massachusetts,  Cali- 
fornia, Ohio,  Illinois,  New  Jersey,  Tennessee,  and  by  consti- 
tutional provision  in  Minnesota,  and  it  will  not  be  long  be- 
fore they  are  enacted  in  every  state  of  the  Union. 

Legacy  and  succession  taxes  were  likewise  imposed  upon 
real  and  personal  property  under  several  different  acts  by 
congress  during  the  War  of  the  Rebellion,  and  they  were  a 
prolific  source  both  of  revenue  and  litigation  to  the  federal 
government.  They  imposed  a  tax  of  1  to  5  per  cent,  upon 
both  lineal  and  collateral  heirs,  exempting  only  husband  or 
wife  of  decedent  under  the  legacy  act,  and  in  this  respect,  as 
well  as  in  the  terms  used,  were  much  like  the  English  acts 
from  which  they  were  evidently  taken.44  These  laws,  how- 
ever, with  their  numerous  amendments,  were  all  swept  away 
by  the  repealing  act  of  1870,  and  it  has  not  been  thought 
important  to  present  them  in  the  Appendix.45 

Under  the  income  tax  act  passed  in  1894,  a  tax  of  2  per 
cent,  was  imposed  by  congress  upon  money,  and  the  value 
of  all  personal  property  acquired  by  gift  or  inheritance,  but 

43  See  statutes  of  New  York,  New  Jersey,  Pennsylvania,  Massa- 
chusetts, Maine,  Connecticut,  Illinois,  California,  Ohio,  and  Mary- 
land, Appendix  I.-X.;  In  re  McPherson,  supra;  Ely,  Tax'n  (1888) 
p.  313;  Davies'  System  of  Taxation  mentions  Missouri,  but  I 
have  been  unable  to  find  any  such  law  in  that  state.  See,  also,  "The 
Inheritance  Tax,"  by  Max  West,  N.  Y.,  1893. 

44  Scholey  v.  Rew,  23  Wall.  349. 

4  5  Act  June  30,  1864,  c.  173,  §  173;  13  Stat.  223-285;  Id.  p.  287,  §§ 
124,  127,  128;  14  Stat.  98-100;  repealed  by  Act  July  14,  1870,  c.  255 
(16  Stat.  256-261)  §  17  (Rev.  St.  U.  S.  [2d  Ed.,  1878]  p.  679) —the  re- 
pealing clause  of  which  act,  however,  provided:  "All  provisions  of 
said  act  shall  continue  in  full  force  for  levying  and  collecting  all  taxes 
properly  assessed  or  liable  to  be  assessed  or  accruing  under  the  pro- 
visions of  former  acts  or  drawbacks,"  etc 
(14) 


Ch.    1]  COLLATERAL    INHERITANCE,   ETC.,  TAXES.  §    5 

under  the  recent  decision  of  the  supreme  court  this  act 
having  been  declared  unconstitutional  this  portion  of  the  act 
falls.46 

In  this  country,  differing  from  the  English  method,  except 
under  the  acts  of  congress  above  referred  to,  these  taxes 
have,  as  a  rule,  been  imposed  only  upon  certain  collateral 
relatives,  strangers  to  the  blood,  and  corporations  that  are 
not  specially  exempted  by  law  from  taxation.  In  includ- 
ing both  real  and  personal  property  within  the  purview  of 
the  law,  the  earliest  of  American  statutes  made  a  vast  im- 
provement upon  the  English  system  as  embraced  in  the  leg- 
acy act,  but,  unlike  the  English  laws  or  the  succession  and 
legacy  laws  of  congress,  too  many  exemptions  and  excep- 
tions seem  to  have  been  made  in  the  state  statutes,  and  thus 
a  vast  amount  of  property  devolving  upon  collaterals  and 
so-called  charitable  institutions  annually  escapes  taxation 
here  which  is  there  made  to  pay  duty.  In  these  respects 
the  American  system  is  insuperably  inferior  to  that  of  Eng- 
land. 

(a)  Pennsylvania. 

The  English  law  evidently  soon  attracted  attention  in  this 
state,  for  the  first  collateral  inheritance  act  was  passed  in 
Pennsylvania  in  1826.  This  act  is,  perhaps,  still  in  force 
under  the  rulings  of  the  Pennsylvania  courts,  but  it  has  been 
considerably  modified  by  various  amendments,  added  from 
time  to  time,  and  recently,  by  the  law  of  1887,  the  whole 
subject  has  been  codified.  It  is  said  that  the  provisions  of 
the  new  act  are  scarcely  more  than  a  re-enactment  and  con- 
solidation of  the  prior  laws.47 

46  Pollock  v.  Farmers'  Loan  &  Trust  Co.,  157  U.  S.  429,  15  Sup.  Ct. 
673. 

47  Laws  Pa.  1887,  p.  79.  See  Appendix,  III.;  Commonwealth's  Ap- 
peal, 128  Pa.  St.  603, 18  Atl.  386;  Id.  (Pa.  Sup.)  17  AtL  1096;  Id.,  5  Pa. 
Co.  Ct.  R.  271,  affirmed  127  Pa.  St.  435,  17  Atl.  1094;  Bittinger's  Estate 
(18S9)   129  Pa.  St.  33S,   18  Atl.  132.     See  In  re  Del  Busto's  Estate 

(15) 


§   5  COLLATERAL    INHERITANCE,   ETC.,  TAXES.  [Ch.   1 

"The  tax  has  contributed  so  essentially  to  the  firm  estab- 
lishment of  the  credit  of  Pennsylvania,"  says  an  eminent 
judge,  "and  has  been  so  long  approved  by  the  people  of  the 
state,  that  it  is  not  likely  ever  to  be  given  up,"  48  an  asser- 
tion the  truth  of  which  is  fully  confirmed  by  the  large  reve- 
nue derived  from  this  tax  in  1889,  and  since.49  Efforts  have 
been  recently  made  in  this  state  to  put  in  force  a  tax  on 
property  passing  to  direct  or  lineal  heirs,  but  it  failed  of 
success. 

(b)  Louisiana. 

In  Louisiana,  by  law  of  1828,50  a  legacy  tax  was  imposed 
of  10  per  cent,  upon  legacies  to  foreign  heirs  and  citizens 
residing  abroad.  This  law,  as  modified,  was  finally  repealed 
in  1877,  for  what  reason  does  not  appear.51 

(c)  Maryland. 

The  Maryland  law  was  passed  in  1864,  and  is  now  con- 
tained in  the  Code  of  that  state.52 

(1888)  45  Leg.  Int.  474,  23  Wkly.  Notes  Cas.  Ill,  where  Penrose,  J., 
has  collated  and  explained  all  the  laws  of  Pennsylvania  on  the  sub- 
ject. The  act  of  1887  is  simply  a  digest  or  compilation  of  all  prior 
acts  on  the  subject,  and  declaratory  of  the  law  as  theretofore  con- 
strued. Small's  Estate,  151  Pa,  St.  1,  25  Atl.  23;  Weaver's  Estate 
(1895)  12  Lane.  Law  Rev.  57.  The  law  from  1S26  to  1855  will  be 
found  iD  1  Brightly's  Purd.  Dig.  214.  The  subject  is  also  treated  to 
a  limited  extent  in  Scott,  Intest.  Laws  Pa.  1871,  p.  535  et  seq.,  and 
briefly  considered  by  Hil.  Tax'n,  p.  195. 

4  8  Com.  v.  Coleman,  52  Pa.  St.  473. 

49  See  note,  p.  21. 

eo  Acts  March  25,  1828,  Act  No.  95. 

6i  Act  1S77,  p.  125,  repealing  articles  1221-1223,  Rev.  Civ.  Code, 
and  sections  3683,  3684,  Rev.  St.  1870.  See,  also,  Act  March  15,  1830, 
§  1;    Act  March  16,  1842,  §  4. 

52  See  Appendix,  VIII. ;  Pub.  Gen.  Laws  Md.  1888,  p.  1212,  art.  SI; 
Rev.  Code  1S78,  p.  117.  See,  also,  Laws  1844-45,  c.  237;  Laws 
1S45-46,  c.  202;    Laws  1874,  c,  483,  §§  113,  115;   Laws  1880,  c.  444; 

(10) 


Ch.    1]  COLLATERAL    INHERITANCE,   ETC.,   TAXES.  §    5 

(d)  Virginia. 

In  Virginia  the  law  has,  from  time  to  time,  existed  since 
1844.     It  imposed  a  tax  of  5  per  cent.53 

(e)  North  Carolina. 

The  statute  of  North  Carolina  upon  this  subject  was  pass- 
ed in  1846,54  but  it  seems  to  have  suffered  repeal  in  1883.55 

(f)  Delaware. 

The  statute  passed  in  Delaware  in  1869,  has  since  been 
embodied  in  the  Kevised  Code  of  that  state.  The  act  is 
based  upon  the  English  statutes,  the  tax  being  graduated 
from  1  to  5  per  cent.56 

(g)  Connecticut. 

The  statute  of  Connecticut,  passed  in  1889,  imposes  a  tax 
of  5  per  cent,  upon  all  sums  over  $1,000.57 

(h)   West  Virginia. 

In  this  state  a  law  has  existed  since  1887,  by  which  a  tax 
of  1\  per  cent,  is  imposed  upon  collateral  inheritances,  and 
where  the  amount  of  the  estate  is  less  than  $1,000  it  is  ex- 
empt.58 

Id.  c.  455.  In  this  state  the  gift  of  freedom  to  a  slave  was  taxed. 
State  v.  Dorsey  (1848)  6  Gill,  388. 

ss  See  Eyre  v.  Jacob,  14  Grat.  422;  Laws  Feb.  6,  1844;  Code  1849, 
c.  36  et  seq.;  Act  March  28,  1863,  §  15;  Act  1866-67,  p.  861,  c.  64,  §  3. 
The  act  of  1S54  was  repealed  by  the  act  of  1856.  Fox  v.  Com.,  16 
Grat.  1.  For  a  history  of  these  laws,  see  Miller  v.  Com.  (1876)  27 
Grat.  112. 

5  4  Laws  1846,  c.  72,  §§  1,  2;  Laws  184S-49,  c.  81;  Battle's  Revisal 
1873,  p.  775,  §  59. 

5  5  Code  N.  C.  1883,  §  3867. 

se  See  Rev.  Code  Del.  1874,  p.  38;  13  Laws  Del.  1869,  c.  390. 

57  See  Appendix,  VII.,  Pub.  Laws  Conn.  1SS9,  p.  106,  c.  180,  as 
amended  by  Laws  1893,  c.  257,  p.  406. 

5  8  Warth's  Code  (2d  Ed.)  1887,  c  32,  §  51a;  Laws  1S87,  c.  31.  See, 
also,  Laws  1891,  c.  116. 

LAW  INHER. 2  (17) 


§   5  COLLATERAL    INHERITANCE,  ETC.,  TAXES.  [Ch.    1 

(i)  New   York. 

The  law  in  this  state  was  originally  enacted  in  1885.B9  It 
was  at  first  purely  a  tax  upon  collateral  inheritances.  The 
statute  was  amended  in  1887,  1889,  1890,  and  1891.60  The 
original  acts  of  1885  and  1887  were  based  upon  the  statutes 
of  Pennsylvania  existing  prior  to  1855,  and  with  few  ex- 
ceptions they  differed  little  in  substance  from  these  laws. 
They  were,  however,  drafted  carelessly,  and  were  indefinite 
regarding  the  taxation  of  contingent  interests,  remainders, 
and  future  estates,  and  were,  for  that  reason,  the  cause  of 
considerable  judicial  criticism,  and  of  conflicting  opinions  in 
the  lower  courts.  It  has  been  well  said  that  these  statutes 
represented  the  crude  and  severe  system  as  it  existed  under 
the  Pennsylvania  act  of  1826,  without  embodying  the  vari- 
ous amendments  subsequently  added  thereto.61  But  in  1891, 
owing  to  the  exertions  of  the  then  governor  (Hon.  David  B. 
Hill),  the  system  was  extended  so  as  to  include  also  a  tax 
of  1  per  cent  upon  lineal  heirs  where  the  estate  was  per- 
sonalty of  $10,000  or  over,  real  estate  being  exempt.62  The 
system  was  further  improved  in  1892  by  the  enactment  of 
an  entirely  new  law,  containing  many  important  provisions, 
especially  those  in  relation  to  the  taxation  of  contingent 
and  future  estates.63  Its  provisions  have  largely  been  made 
definite  by  judicial  determination.  This  act  with  further 
amendments  to  1895  is  still  in  force.  The  act  is  entitled 
"An  act  in  relation  to  taxable  transfers  of  property."  It 
imposes — First,  a  tax  upon  personalty  devised  to  or  inherit- 
ed by  lineal  heirs  and  others  of  1  per  cent,  where  the  estate 

59  Chapter  483  took  effect  June  30,  1SS5;  In  re  Howe,  112  N.  Y. 
100,  19  N.  E.  513,  affirming  48  Hun,  235. 

eo  See  Appendix,  I.,  Laws  1887,  c.  713;  Laws  1889,  cc.  307,  479; 
Laws  1S90,  c.  553;   Laws  1891,  e.  215. 

6i  For  notes  on  Collateral  Inheritance  Tax,  see  19  Abb.  N.  C.  234; 
In  re  Wolfe,  29  Abb.  N.  C.  358,  456,  21  N.  Y.  Supp.  515,  522. 

62  Laws  1891,  c.  215. 

es  See  Appendix,  I.  e,  Laws  1S92,  c.  399. 

(18) 


Cll.    1]  COLLATERAL    INHERITANCE,   ETC.,   TAXES.  §    5 

if  of  the  value  of  $10,000  or  more;  and,  secondly,  a  tax  upon 
both  real  and  personal  property,  devised  to,  or  inherited  by, 
collateral  heirs,  corporations,  and  strangers  to  the  blood, 
the  tax  being  at  the  rate  of  5  per  cent,  where  the  estate  is 
of  the  value  of  $500  or  over.64 

A  number  of  amendments  were  made  to  the  act  of  1892 
by  the  legislature  between  that  time  and  the  year  1S95,  and 
these  will  also  be  found  in  their  proper  places  in  the  Appen- 
dix.65 

The  revenues  derived  by  the  state  under  these  important 
laws,  as  will  be  seen  by  the  statistical  table  below,  have  in- 
creased almost  uniformly  each  year,  and  it  will,  if  properly 
managed,  be,  in  the  course  of  a  few  years,  one  of  the  most 
remunerative  taxes  imposed.  The  expense  of  collection  is 
not  large,  as,  instance  the  year  1S92,  it  was  only  $81,819. 
The  revenue  under  the  acts  would  be  much  larger  were  there 
not  so  many  exemptions  allowed  to  charitable,  religious,  and 
other  miscellaneous  corporations  and  institutions,  and  by 
judicial  exemptions  of  the  personalty  of  nonresidents,  as 
decided  in  Re  James.66  At  least  13  different  institutions 
of  religious  and  charitable  character  are  exempted  un- 
der the  act  of  1890,67  and  others  under  the  act  of  1892.68 

e*  Act  1S92,  c.  399,  §  26,  and  Laws  1S93,  p.  355,  c.  199,  §  2,  repeal 
the  following  laws  previously  existing:  Laws  18S5,  c.  4S3;  Laws 
1SS7,  c.  713;  Laws  1889,  cc.  307,  479;  Laws  1891,  c.  215;  Laws  1892, 
c.  443. 

The  following  statutes  remain  unrepealed,  and  with  the  act  of  1892 
are  contained  in  the  Appendix:  Laws  1S90,  c.  553;  Laws  1892,  c. 
168;  Laws  1893,  c.  704;  Id.  p.  1725,  c.  692,  §  4Sc;  Id.  p.  355,  c.  199; 
Laws  1894,  p.  1929,  c.  767. 

es  They  are  Laws  1895,  c.  556,  amending  section  13,  c.  399,  Laws 
1892,  and  chapter  191,  amending  section  14;  chapter  378,  amending 
section  15. 

66  144  N.  Y.  6,  38  N.  E.  961. 

67  Chapter  553. 
es  Chapter  399. 

(19) 


§    5  COLLATERAL   INHERITANCE,  ETC.,  TAXES.  [Ch.    1 

Exemptions  so  sweeping  impair  the  stability  of  any  law, 
and  they  should  be  either  wholly  repealed  or  restricted  to 
institutions  that  do  public  charity.69 

es  On  January  7,  1S90,  Governor  Hill,  of  New  York,  who  has  been 
a  strong  exponent  of  these  laws,  said  in  his  message  to  the  legisla- 
ture: "But  it  is  respectfully  suggested  as  worthy  of  the  consideration 
of  the  legislature  whether  a  satisfactory  solution  of  the  problem  of 
taxing  personal  property  may  not  be  found  in  a  graduated  probate 
and  succession  tax  upon  the  personal  property  of  decedents,  develop- 
ing into  a  complete  system  the  theory  of  the  collateral  inheritance 
tax.  Already  most  estates  of  decedents  are  carefully  appraised  by 
disinterested  parties  through  the  machinery  of  our  surrogates'  courts. 
Without  going  into  details,  it  seems  possible  to  devise  a  system  re- 
quiring all  estates  of  decedents  over  a  certain  valuation  to  be  admin- 
istered in  a  surrogate's  court,  at  least  so  far  as  to  obtain  an  appraisal 
of  the  personal  property  thereof;  and,  after  allowing  reasonable  ex- 
emptions to  the  immediate  next  of  kin,  a  percentage  tax  may  be  im- 
posed upon  the  remainder,  reasonably  graduated  by  an  increasing 
percentage  as  the  relationship  of  those  who  are  to  receive  is  more 
remote,  and  as  the  valuation  of  the  estate  is  greater.  The  theory  of 
such  a  graduated  percentage  tax  is  not  harsh  or  inequitable.  Such  a 
system  has,  I  am  advised,  existed  for  a  long  time  in  England,  and 
has  worked  well,  and  the  propriety  of  its  adoption  here  is  suggested 
for  your  consideration."  In  his  annual  message  to  the  legislature 
(January  6,  1891),  Governor  Hill  again  touched  upon  this  subject, 
recommending  a  probate  and  succession  tax.  He  said:  "If,  howevei\ 
the  legislature  in  its  wisdom  shall  hesitate  to  adopt  the  radical 
changes  here  outlined,  another  method  of  reaching  personal  property 
for  the  purpose  of  taxation  may  be  found  in  the  plan  of  a  graduated 
probate  and  succession  tax  upon  the  personal  property  of  decedents. 
Nearly  all  such  estates  are  carefully  appraised  by  impartial  officials 
selected  by  our  surrogates'  courts,  and  upon  such  appraisal  the  per- 
sonal estate  can  at  least  be  subjected  to  one  tax,  although  it  may 
never  have  been  able  to  be  reached  during  the  life  of  the  decedent.  A 
system  can  easily  be  devised  absolutely  requiring  all  estates  of  dece- 
dents over  a  certain  valuation  to  be  administered  in  a  surrogate's 
court,  to  the  extent  of  obtaining  an  appraisal  of  the  personal  property 
thereof;  and,  after  allowing  reasonable  exemptions  to  the  immediate 
next  of  kin,  a  fair  percentage  tax  may  be  imposed  upon  the  remain- 
der, collectible  in  the  surrogate's  court,  and  reasonably  graduated  ac- 
(20) 


Ch.    1]  COLLATERAL    INHERITANCE,   ETC.,   TAXES. 


§  5 


(j)  Maine. 

A  collateral  inheritance  tax  of  2-J  per  cent.,  where  the 
property  passing  is  above  the  sum  of  f  500,  is  imposed  by  a 


cording  to  the  value  of  the  estate.  The  theory  of  such  a  graduated 
percentage  tax  seems  fair  and  just,  especially  in  view  of  the  fact 
that  personal  property,  under  existing  methods,  nearly  entirely  es- 
capes taxation  during  the  life  of  its  owner.  A  similar  system  is  in 
operation  in  England,  and  I  am  advised  that  it  works  satisfactorily, 
and  the  propriety  of  its  adoption  here  is  suggested  for  your  consid- 
eration." 

Table  showing  the  revenue  derived  from  collateral  taxes  by  the  fol- 
lowing states: 


18S6.  |  1887. 

1SS8. 

1889. 

1890. 

$  84,128  $501,716 
662,976  763,871 
1   45,597 

$736,062 

713.434 

57,767 

$1,075,692 

1,378,458 

56,393 

$  1,117,6::7  CO 

670.371  00 

83,656  00 

1     913 

14,600  42 

1891. 

1892. 

1893. 

1894. 

1S95  to 
Aug.  8. 

$  8-/0,267  00 

1,232,766  00 

67,738  00 

$1,786,218  00 

1,111,120  00 

114,009  00 

$3,071,687  09 

.$1,688,954  20 

$1,90S,122 

74.758  93 

177,662  97 

Massachusetts  received  in  1892  about  $12,000  from  this  tax;  in 
1S93,  about  $59,000;  and  in  1894  over  $127,000.  It  is  proposed  to 
tax  direct  heirs  in  this  state. 

The  present  comptroller  of  the  state  of  New  York,  and  his  deputy, 
Hon.  W.  J.  Morgan,  have  taken  a  very  active  interest  in  the  en- 
forcement of  these  laws.  In  the  report  of  the  comptroller  for  1895 
he  says:  "During  the  fiscal  year  ending  September  30,  1894,  there 
was  collected  under  the  transfer  or  succession  tax  laws  the  sum  of 
$1,688,954.20.  The  average  for  the  eight  prior  years  during  which 
the  law  has  been  in  operation  has  been  $1,165,426.31.  There  was 
therefore  collected  $523,527.89  in  excess  of  the  average  annual 
amount.  The  fiscal  year  ending  September  30,  1S93,  was  notable  in 
the  number  of  large  estates  settled,  four  estates  alone  paying  the  un- 
usual tax  of  $1,096,036.97.  The  largest  sum  received  during  the  last 
fiscal  year  from  any  estate  was  $70,000.  Some  decrease  in  the  receipts 
of  this  bureau  during  the  past  year  has  undoubtedly  been  due  to  the 

(21) 


§    5  COLLATERAL    INHERITANCE,  ETC.,  TAXES.  [Ch.    1 

statute  passed  in  this  state  in  1893.70  By  recent  decision  of 
the  supreme  court  this  statute  has  been  declared  constitu- 
tional.71 

(k)  Massachusetts. 

In  this  state  a  collateral  inheritance  tax  of  5  per  cent,  is 
imposed  by  an  act  passed  in  1891. 72  It  is  imposed  upon  all 
estates  exceeding  the  value  of  $10,000,  after  the  payment  of 
all  debts.  This  act  has  been  declared  constitutional  by  the 
supreme  court  of  the  state.73 

(1)  New  Jersey. 

In  this  state,  by  a  statute  passed  in  1892,  a  collateral 
inheritance  tax  of  5  per  cent,  is  imposed  upon  all  estates 
passing  to  collaterals  where  the  value  exceeds  $500.  This 
act  was  amended  in  1893  and  1894,  and  all  prior  laws  re- 
pealed.74 The  act  has  been  declared  unconstitutional  so  far 
as  it  attempts  to  tax  real  estate.  In  other  respects  it  is  a 
valid  legislative  act.75  Real  estate  is  now  liable  under  the 
act  of  1894* 

(m)   Ohio. 

In  this  state  there  are  two  statutes:  A  collateral  inherit- 
ance tax  imposed  under  an  act  passed  in  1893  and  amended 
April  20, 1894.76     This  act  imposes  a  tax  of  5  per  cent,  upon 

shrinkage  in  property  values."  Report  of  Hon.  James  A.  Roberts. 
State  Comptroller,  N.  Y.,  1895,  p.  17. 

to  See  Appendix,  V.,  Laws  1893,  c.  146;   Laws  1895,  cc.  96,  124. 

7i  State  v.  Hamlin  (1894)  86  Me.  507,  30  Atl.  76. 

7  2  Appendix,  IV.  a,  Laws  1891,  c.  425. 

73  Minot  v.  Winthrop  (1894)  162  Mass.  116,  38  N.  E.  512. 

74  Appendix,  II.,  Laws  1894,  c.  210,  repealing  Laws  1892,  c.  122; 
Laws  1893,  c.  210. 

7  6  Van  Riper  v.  Happenheimer  (Feb.,  1894)  17  N.  J.  Law  J.  49;   In 
re  Dobermuller,  Id.  378. 

♦Appendix,  II.;    State  v.  Hancock  (1895;  N.  J.)  32  Atl.  689. 

7  6  See  Appendix,  VI.  a,  Laws  1893,  p.  14,  as  amended  by  Laws 
1S94,  p.  169. 
(22) 


Ch.    1]  COLLATERAL    INHERITANCE,  ETC.,  TAXES.  §    5 

all  property  exceeding  the  value  of  $200.  By  a  further  act, 
passed  in  1894,  entitled  "An  act  to  impose  a  direct  inherit- 
ance tax,"  77  a  graduated  tax  is  imposed  upon  property  pass- 
ing to  lineal  heirs.  But  this  act  has  been  recently  declared 
unconstitutional,  as  violating  provisions  of  the  state  and 
federal  constitutions.  On  appeal  to  the  supreme  court  of 
Ohio  the  decision  of  the  lower  court  was  affirmed.78 

(n)   California. 

A  law  taxing  collateral  inheritances,  bequests,  and  devises 
was  passed  by  the  legislature  of  this  state  and  approved 
March  23,  1S93.79  It  is  evidently  modeled  upon  the  New 
York  statute  of  1887.  It  imposes  a  tax  of  5  per  cent,  upon 
all  estates  passing  to  collateral  heirs  and  strangers,  provid- 
ing that  an  estate  which  may  be  valued  at  a  less  sum  than 
$500  shall  not  be  subject  to  the  tax  or  duty. 

(o)   Tennessee. 

By  a  statute  passed  in  this  state  in  1891,80  and  continued 
by  a  law  passed  in  1893, 81  a  5  per  cent,  collateral  inheritance 
tax  is  now  imposed. 

(p)  Illinois. 

Under  a  recent  statute  passed  in  June,  1895,82  entitled 
"An  act  to  tax  gifts,  legacies  and  inheritances  in  certain 
cases  and  to  provide  for  the  collection  of  the  same,"  a  tax 

7  7  See  Appendix,  VI.  b,  Laws  1894,  p.  166. 

78  The  decision  in  the  lower  court  is  in  State  v.  Ferris  (April,  1S95) 
9  Ohio  Cir.  Ct.  R.  299,  affirmed,  as  State  of  Ohio  ex  rel.  Prosecuting 
Attorney  v.  Ferris,  Probate  Judge,  23  Yv'kly.  Law  Bui.  (Ohio)  July 
1,  1S95,  349,  352.  The  opinion  will  be  published  in  the  N.  E.  Rep. 
as  soon  as  handed  down. 

7  9  See  Appendix,  IX.,  Laws  1S93,  c.  168. 
so  Laws  1891,  Extraord.  Sess.  c.  25,  §  6. 
si  Laws  1S93,  c.  174,  p.  347. 

8  2  See  statute,  Appendix,  X.,  taken  from  Bradwell's  Edition  of 
Illinois  Statutes  for  1895  (page  213),  approved  June  15,  1S95,  in  force 
July  1,  1895  (Laws  1895,  Reg.  &  Ex.  Sess.  p.  301). 

(23) 


§   5  COLLATERAL    INHERITANCE,  ETC.,  TAXES.  [Ch.    1 

is  now  imposed  83  upon  certain  lineal  and  collateral  heirs 
of  1  per  cent,  providing  that  any  estate  which  may  be  val- 
ued at  a  less  sum  than  $20,000,  shall  not  be  subject  to  any 
such  duty  or  taxes;  and  the  tax  is  to  be  levied  in  this  case 
only  upon  the  excess  of  $20,000  received  by  each  person. 
The  tax  on  certain  collateral  heirs,  such  as  uncle,  aunt,  niece, 
nephew,  or  any  lineal  descendant  of  the  same,  is  imposed  at 
the  rate  of  $2  on  the  clear  market  value  of  such  property 
received  by  each  person  on  the  excess  of  $2,000  so  received 
by  each  person.  The  statute  provides  that  in  all  other 
cases  the  rate  shall  be  as  follows:  On  each  and  every 
$100  of  the  clear  market  value  of  all  property,  and  at 
the  same  rate  for  any  less  amount;  on  all  estates  of 
$10,000  and  less,  3  per  cent. ;  on  all  estates  of  over  $10,000 
and  not  exceeding  $20,000,  4  per  cent;  on  all  estates  over 
$20,000  and  not  exceeding  $50,000,  5  per  cent;  and  6n  all 
estates  over  $50,000,  6  per  cent. ;  exempting  an  estate  which 
may  be  valued  at  a  less  sum  than  $500.  This  statute  is  evi- 
dently modeled  after  the  New  York  statutes  in  many  re- 
spects, but  it  does  not  seem  to  have  been  carefully  drafted 
with  regard  to  legal  phraseology,  and  for  this  and  other  rea- 
sons may  unfortunately  be  the  source  of  much  litigation. 

(q)  Minnesota. 

Under  the  constitution  of  this  state,  by  recent  amend- 
ment,84 it  is  provided  that  there  may  be,  by  law,  levied  and 
collected  a  tax  upon  all  inheritances,  devises,  bequests,  leg- 
acies, and  gifts  of  every  kind  and  description  above  a  fixed 
and  specified  sum,  of  any  all  natural  persons  and  corpora- 
tions.     Such  a  tax,  above  such  exempted  sum,  may  be  uni- 

83  id.  §  1;    St.  (Bradwell's  Ed.)  p.  213,  §  307. 

84  Adopted  November  6,  1894.  See  note  on  proposed  tax,  2  Minn. 
Law  J.  May,  1894,  p.  123.  This  provision  was  evidently  inserted  to 
meet  the  ruling  in  State  v.  Gorman,  40  Minn.  232,  41  N.  W.  948. 

(24) 


Ch.  1]      COLLATERAL  INHERITANCE,  ETC.,  TAXES.        §  5 

form,  or  it  may  be  graded  or  progressive,  but  shall  not  ex- 
ceed a  maximum  tax  of  5  per  cent. 

(r)  Proposed  Legislation  in  other  States. 

The  times  seem  to  be  propitious  for  this  system  of  taxa- 
tion. It  is  being  agitated  successfully  everywhere,  and  has 
few  opponents,  and  it  will  not  be  long  before  it  will  be  adopt- 
ed by  all  the  American  states.  Legislation  looking  to  its 
adoption  in  r  ther  states  where  these  laws  are  desired  has 
been  very  active  during  the  past  four  years,  and  the  system 
has  been  undergoing  improvement  in  the  states  where  the 
laws  already  exist. 

In  Illinois,  as  we  have  already  noticed,  a  law  has  been 
recently  passed  taxing  property  passing  to  collateral  and 
lineal  heirs  in  certain  cases,  including  both  the  estates  of 
resident  and  nonresident  decedents.  In  Minnesota  and  Wis- 
consin bills  were  before  the  legislatures  of  1893  and  1895, 
proposing  inheritance  taxes,  but  failed  to  pass.  In  Minne- 
sota, however,  as  we  have  seen,  a  constitutional  amendment 
has  been  made  allowing  the  legislature  to  impose  a  graded 
tax.86 

An  amendment  to  the  Pennsylvania  statute  of  1887  was 
proposed  in  the  legislature  of  1891  and  1895,  imposing  a  tax 
upon  lineal  heirs,  but  the  bill  was  defeated  in  the  senate. 
Similar  bills  were  proposed  in  Connecticut  and  Massa- 
chusetts. Bills  have  also  been  pending,  but  did  not  succeed, 
during  the  present  year,  before  the  legislatures  of  Michigan, 
Minnesota,  and  Nebraska,  and  other  states.  The  federal 
inheritance  or  succession  tax  of  2  per  cent,  contained  in  the 
income  tax  act  of  1894  is  inoperative,  the  whole  act  having 
been  declared  unconstitutional.87 

8e  See  State  v.  Mann,  76  Wis.  469,  45  N.  W.  526,  and  46  N.  W.  51; 
State  v.  Gorman,  40  Minn.  232,  41  N.  W.  948. 

S7  Pollock  v.  Farmers'  Loan  &  Trust  Co.,  157  U.  S.  429,  15  Sup. 
Ct.  673. 

(25) 


§    6  COLLATERAL    INHERITANCE,  ETC.,  TAXES.  [Ch.    1 


§  6.     Canadian  Statutes. 

In  recent  years  this  system  of  taxation  has  also  been  in- 
troduced in  the  Canadian  or  British  provinces,  in  the  form 
of  succession  and  legacy  duties.  A  short  reference  to  some 
of  these  statutes  may  be  instructive. 

(1)  Quebec.*8 

By  a  statute  in  force  in  this  province,  passed  in  1892, 
amended  in  1804,  duties  are  imposed  on  successions  to  and 
transfers  of  real  estate  and  movable  property  at  the  rate  of 
from  1  to  10  per  cent. 

Estates  that  do  not  exceed  $3,000  are  exempted. 

The  tax  is  graded  as  follows: 

Kelating  to  property  passing  to  those  standing  in  a  direct 
line,  a  duty  of  \  per  cent,  on  any  sum  between  $3,000  and 
$5,000  to  3  per  cent,  on  sums  over  $200,000. 

In  the  collateral  line  the  duty  is  from  3  per  cent,  to  8  per 
cent.,  according  to  degree  of  relationship. 

To  strangers  to  the  blood  a  duty  of  10  per  cent,  is  imposed. 

(2)  Ontario. 

Succession  duties  are  imposed  under  a  statute  passed  in 
1892.89  Estates  not  exceeding  $10,000  and  legacies  not  ex- 
ceeding $200  are  exempt,  and  direct  heirs  are  taxable  only 
wrhen  the  whole  estate  exceeds  $100,000.  The  rate  is  2\  per 
cent,  where  the  property  passing  is  between  $100,000  and 
$200,000,  and  passes  to  decedent's  father,  mother,  husband, 
wife,  children,  grandchildren,  daughters-in-law,  and  sons-in- 
law,  and  5  per  cent,  where  the  property  exceeds  $200,000. 
Remote  relatives  pay  5  per  cent,  and  strangers  to  the  blood 

ss  Statute  of  Quebec,  55  &  5G  Vict.  1S92,  p.  46,  c.  17,  amended  by 
57  Vict.  (1894)  p.  84. 
89  55  Vict.  p.  9,  c.  6. 
(20) 


Cll.    1]  COLLATERAL    INHERITANCE,   ETC.,   TAXES.  §    6 

10   per   cent.     Religious,   charitable,   and   educational   be- 
quests are  exempt 

(3)  Nova  Scotia. 

A  duty  is  assessed  on  all  property,  real  or  personal,  capa- 
ble of  being  devised  or  bequeathed,  or  passing  by  descent  or 
inheritance.90  The  act  does  not  apply  to  property  under 
$5,000,  or  to  property  given  to  religious  or  charitable  pur- 
poses, or  to  a  father,  mother,  husband,  wife,  child,  brother, 
sister,  daughter-in-law,  or  son-in-law,  where  the  property  so 
passing  does  not  exceed  $25,000.  Where  the  value  is  in 
excess  of  such  figures  a  tax  at  1\  per  cent,  is  imposed,  and 
when  it  exceeds  $100,000  5  per  cent. 

Where  property  passes  to  other  lineal  relatives  than  those 
named,  and  exceeds  $5,000,  the  excess  is  taxed  at  5  per  cent. 

To  collateral  relatives  or  strangers  to  the  blood  the  duty 
is  10  per  cent. 

Legacies  that  do  not  exceed  $200  are  exempted. 

(4)  Manitoba. 

Duty  is  assessed  on  all  property,  real  or  personal,  capable 
of  being  devised  or  bequeathed,  or  passing  by  inheritance  or 
descent.91 

Estates  not  exceeding  $4,000  are  exempted  to  the  same  lin- 
eal relatives  as  those  under  the  Nova  Scotia  statute. 

On  all  others  there  is  a  graded  duty  of  from  1  per  cent, 
up  to  $25,000  to  10  per  cent,  on  one  million  or  more. 

(5)  British  Columbia.92 

Here  the  act  does  not  apply  to  estates  of  less  than  $5,000, 
nor  to  property  passing  to  or  for  use  of  father,  mother,  hus- 
band, wife,  child,  grandchild,  daughter-in-law,  or  son-in-law 

of  deceased,  where  the  property  so  passing  does  not  ex- 

• 

»o  Laws  1S92,  p.  97,  c.  6,  as  amended  Laws  1894,  p.  59,  c  29. 
»i  56  Vict.  pp.  88-93,  c.  31. 
»2  Laws  1894,  p.  249,  c  47. 

(27) 


§   6  COLLATERAL    INHERITANCE,  ETC.,  TAXES.  [Ch.    1 

ceed  $25,000.  If  it  exceeds  $25,000,  the  first  $5,000  is  ex- 
empted, and  the  rest  taxed  at  one-half  of  the  rates  herein- 
after named. 

With  these  exceptions  all  other  property  is  taxed  as  fol- 
lows:   Up  to  $100,000,  1  per  cent.;    between  $100,000  and 
$1,000,000,  from  2  to  4  per  cent;  over  $1,000,000,  it  is  5  per 
cent. 
(28) 


Ch.  2]      NATUKE   OF   TAX    AND    ITS    CONSTITUTIONALITY.  §    7 

CHAPTER  II. 

NATURE  OF  TAX  AND  ITS  CONSTITUTIONALITY. 

§      7.    General  Power  of  State  over  Taxation. 

8.  Collateral,  Direct,  or  Inheritance  Tax  is  upon  the  Privilege 

of  Succession  to  Property. 

9.  Nature  of  Tax  in  New  York,  under  Act  of  1S92. 

10.  A  Tax  upon  a  "Commodity"  in  Massachusetts. 

11.  Under  the  Constitution  of  Minnesota. 

12.  Under  the  Federal  "Income  Tax"  of  1894. 

13.  Not  a  Property  Tax. 

14.  Not  a  Direct  Tax. 

15.  Taxing  Foreign  Real  Estate— When  Void  as  Direct  Tax. 

16.  As  to  Being  a  General  or  Special  Tax  Law. 

17.  Not  a  Poll  Tax. 

18.  As  to  Being  an  Equal  and  Uniform  Tax. 

19.  Double  Taxation. 

20.  Not  a  Taking  of  Private  Property,  etc 

21.  Need  not  State  Object  of  Tax. 

22.  As  to  Notice  and  Hearing. 

23.  Due  Process  of  Law  not  Violated. 

24.  As  to  Being  Retroactive  and  Ex  Post  Facto. 

25.  Not  a  Tax  upon  Exports  or  Commerce. 

26.  Conflicting  with  Treaties  and  Alien  Rights. 

27.  Government  Bonds  and  State  Securities. 

28.  United  States  and  Municipalities— Legacies  to— Taxable. 

29.  Legatee's  or  Owner's  Domicile  as  to  Personal  Property  and 

its  Situs. 

30.  Exemptions— When  Constitutional. 

31.  General  Questions  as  to  Jurisdiction. 

§  7.     General  Power  of  State  over  Taxation. 

In  all  matters  appertaining  to  the  domain  of  taxation, 
as  to  the  subject-matter  of  the  tax,  persons,  method  of  val- 
uation, and  the  like,  there  can  be  no  doubt  that,  as  a  gen- 
eral rule,  the  power  of  the  several  states  is  practically  un- 

(29) 


§    8  NATURE   OF   TAX    AND    ITS    CONSTITUTIONALITY.       [Ch.   2 

limited  within  their  several  jurisdictions,  except  where  re- 
stricted or  controlled  by  their  constitutions,  or  by  the  con- 
stitution and  laws  of  the  United  States;  and  it  is  said  that 
in  the  exercise  of  this  function  the  legislature  possesses  full, 
absolute,  and  sovereign  power.  Where  the  power  of  the 
state  has  not  been  thus  interdicted,  controlled,  or  surren- 
dered to  tne  general  government,  its  exercise  rests  in  the 
sound  discretion  of  the  lawmaking  body.1 

No  general  principles  of  law  are  better  settled,  or  more 
fundamental,  than  that  the  legislative  power  of  every  state 
extends  to  all  property  within  its  borders,  and  that  only  so 
far  as  the  comity  of  that  state  allows  can  such  property  be 
affected  by  the  law  of  any  other  state.2 

§  8.     Collateral,  Direct,  or  Inheritance  Tax  is  upon 
the  Privilege  of  Succession  to  Property.3 

With  these  well-settled  principles  in  view,  we  will  now 
consider  briefly  the  various  constitutional  objections  that 
have  been  frequently  urged  in  the  state  and  federal  courts 
against  statutes  imposing  legacy,  inheritance,  and  succes- 
sion taxes,  and  it  may  be  asserted  that  these  objections  have 
all  finally  ten'ded  to  settle — First,  the  precise  nature  of  the 
tax,  as  imposed  by  such  laws;   secondly,  the  power  of  the 

i  Cooley,  Tax'n  (2d  Ed.)  5-7;  McCulloch  v.  Maryland,  4  Wheat. 
316;  Kirkland  v.  Hotchkiss,  100  U.  S.  491;  Eyre  v.  Jacob  (1858)  14 
Grat.  426;  In  re  McPherson  (1887)  104  N.  Y.  316,  10  N.  E.  685; 
Railroad  Co.  v.  Pennsylvania  (1872)  15  Wall.  300,  319;  Appeal  of 
Commonwealth  (Bittinger's  Estate)  129  Pa.  St.  338,  18  Atl.  132;  In 
re  Sherwell's  Estate  (1891)  125  N.  Y.  379,  26  N.  E.  464;  Id.,  58  Hun, 
608,  12  N.  Y.  Supp.  200;  Pullman's  Palace  Car  Co.  v.  Pennsylvania, 
141  U.  S.  18,  11  Sup.  Ct.  876,  affirming  107  Pa.  St.  156.  See  an  article 
entitled  "The  Taxing  Power,  Its  Constitutional  Limitations,  Re- 
straints, and  Requirements,"  42  Alb.  Law  J.  (July  2,  1890)  64. 

2  Pullman's  Palace  Car  Co.  v.  Pennsylvania,  supra. 

8  See,  also,  pest,  §  21. 
(30) 


Cll.    2]       NATURE    OF   TAX    AND    ITS    CONSTITUTIONALITY.  §    8 

several  states  and  of  the  general  government,  within  the 
well-known  restrictions  above  named,  to  enact  laws  impos- 
ing the  same. 

It  is  now  an  established  doctrine  that,  so  far  as  the  na- 
ture of  the  tax  is  concerned,  such  taxes  are  nothing  more 
than  a  burden,  bonus,  excise,  or  assessment,  as  they  have 
been  variously  defined,  imposed  by  government  upon  the 
passing,  devolution,  transmission,  or  privilege  of  taking 
or  receiving  property  under  wills  and  intestate  laws,  wheth- 
er such  property  passes  to  collateral  or  lineal  heirs;  and, 
to  prevent  a  fraudulent  or  intentional  evasion  of  the  tax, 
provisions  have,  in  nearly  all  the  statutes,  also  been  in- 
serted, making  the  tax  applicable  to  all  transfers  made  in- 
ter vivos  or  causa  mortis  intended  to  take  effect  at,  upon, 
or  after  the  death  of  the  transferer.  The  right  to  impose 
these  taxes  is  based  upon  the  broad,  constitutional  power 
of  the  state,  as  a  sovereign,  to  modify,  amend,  extend,  or 
wholly  to  repeal  the  laws  governing  the  transmission  of 
property  by  will  and  intestate  laws.  Such  laws  confer,  at 
the  utmost,  a  mere  privilege  upon  the  heirs  or  other  repre- 
sentatives of  the  decedent  of  succeeding  to  the  estate,  and 
the  legislature  has  the  constitutional  power  to  tax  the  priv- 
ilege conferred,  as  it  has  the  right  to  tax  any  other  privi- 
leges within  its  jurisdiction.4 

These  principles  will  be  found  to  be  fully  substantiated  in 
the  cases  referred  to  in  the  notes.5 

4  See  chapter  1,  §  2. 

e  Eyre  v.  Jacob  (185S)  14  Grat.  427;  Miller  v.  Com.  (1876)  27  Grat. 
110;  Tyson  v.  State  (1868)  28  Md.  577;  State  v.  Dalrymple  (18S9)  70 
Md.  294,  17  Atl.  82;  In  re  McPherson  (1S87)  104  N.  Y.  306,  10  N.  E. 
685;  In  re  Swift,  137  N.  Y.  77,  32  N.  E.  1096;  In  re  Cullum's  Estate, 
5  Misc.  Rep.  173,  25  N.  Y.  Supp.  700,  affirmed  76  Hun,  610,  27  N. 
Y.  Supp.  1105,  and  145  N.  Y.  593,  40  N.  E.  163;  In  re  Merriani's  Es- 
tate, 141  N.  Y.  484,  36  N.  E.  505;  Mager  v.  Grima  (1849)  8  How.  (U. 
S.)  490;  Scholey  v.  Rew  (1874)  23  Wall.  331;  Strode  v.  Com.  (1866)  52 
Pa,  St.  181;    Clymer  v.  Com.,  Id.  1S9;    Com.  v.  Herman  (1885)  16 

(31) 


§    8  NATURE    OF   TAX    AND    ITS    CONSTITUTIONALITY.       [Ch.   2 

It  will  also  be  observed  that  the  various  statutory  provi- 
sions define  the  tax  in  substantially  the  same  manner  as 
that  given  above.6 

In  one  of  the  earliest  cases  decided  in  Virginia 7  the  rule 
above  stated  was  announced,  and  has  ever  since  been  fol- 
lowed. Judge  Lee,  in  an  admirable  opinion,8  said:  "The 
intention  of  the  legislature  was  plainly  to  tax  the  trans- 
mission of  property  by  devise  or  descent  to  collateral  kin- 
dred; to  require  that  a  party  thus  taking  the  benefit  of 
a  civil  right  secured  to  him  under  the  law  should  pay  a 
certain  premium  for  its  enjoyment;  and  as  it  was  thought 
just  and  reasonable  that  the  amount  of  the  premium  should 
bear  a  certain  proportion  to  the  value  of  the  subject  en- 
joyed, it  is  fixed  at  a  certain  per  centum  upon  the  value  of 
the  whole  estate  transmitted.  *  *  *  The  right  to  take 
property  by  devise  or  descent  is  the  creature  of  the  law, 
and  secured  and  protected  by  its  authority.  The  legisla- 
ture might,  if  it  saw  proper,  restrict  the  succession  to  a  de- 

Wkly.  Notes  Cas.  495;  Wallace  v.  Myers  (1SS9)  3S  Fed.  184;  Pullen  v. 
Commissioners  (1872)  66  N.  C.  361.  See,  also,  In  re  Howard  (1887) 
5  Dem.  Sur.  483;  Williams'  Case  (1S27)  3  Bland,  186;  In  re  Short's 
Estate  (1851)  16  Pa.  St.  63;  Carpenter  v.  Pennsylvania  (1S54)  17 
How.  456;  Peters  v.  Lynchburg  (1882)  76  Va.  927;  Schoolfield  v. 
Lynchburg  (1884)  78  Va.  366;  Arnaud's  Heirs  v.  His  Executor.  3  La. 
337.  See,  also,  Minot  v.  Winthrop  (1S94)  162  Mass.  116,  38  N.  E. 
512;  distinguishing  Curry  v.  Spencer,  61  N.  H.  624;  State  v.  Ham- 
lin (1S94)  86  Me.  507,  30  Atl.  76;  In  re  Sherrill's  Estate  (1891)  125 
N.  Y.  379,  26  N.  E.  464;  In  re  Romaine,  127  N.  Y.  80,  27  N.  E.  759; 
In  re  Hoffman's  Estate  (1894)  143  N.  Y.  327,  38  N.  E.  311;  Talmadge 
v.  Seaman,  85  Hun,  242,  32  N.  Y.  Supp.  906,  reversed  as  In  re  Sea- 
man (Oct.  8,  1895;  Ct.  App.)  41  N.  E.  401;  State  v.  Ferris  (April, 
1895)  9  Ohio  Cir.  Ct.  R.  299,  affirmed  as  State  of  Ohio  ex  rel.  v.  Fer- 
ris, 23  Wkly.  Law  Bui.  (Ohio)  July  1,  1895,  349,  352  (the  opinion 
will  be  published  in  the  N.  E.  Rep.  as  soon  as  handed  down). 

6  See  statutes  of  New  York,  Pennsylvania,  Maryland,  Connecticut, 
Maine,  Massachusetts,  California,  Ohio,  Illinois,  and  New  Jersey, 
Appendix,  I.-X. 

7  Eyre  v.  Jacob,  14  Grat.  (Va.)  427. 

s  Eyre  v.  Jacob,  14  Grat.  (Va.)  428-430. 
(32) 


Ch.   2]       NATURE    OF   TAX    AND    ITS    CONSTITUTIONALITY.  §    8 

cedent's  estate,  either  by  will  or  descent,  to  a  particular 
class  of  his  kindred,  say  to  his  lineal  descendants  and  as- 
cendants ;  it  might  impose  terms  and  conditions  upon  which 
collateral  relatives  may  be  permitted  to  take  it,  or  may  to- 
morrow, if  it  pleases,  absolutely  repeal  the  statute  of  wills 
and  that  of  descents  and  distributions,  and  declare  that, 
upon  the  death  of  a  party,  his  property  shall  be  applied  to 
the  payment  of  his  debts,  and  the  residue  appropriated 
to  public  uses.  Possessing  this  sweeping  power  over  the 
whole  subject,  it  is  difficult  to  see  upon  what  ground  its 
right  to  appropriate  a  modicum  of  the  estate,  call  it  a  tax 
or  what  you  will,  as  the  condition  upon  which  those  who 
take  the  estate  shall  be  permitted  to  enjoy  it,  can  be  suc- 
cessfully questioned.  That  the  tax  is  confined  to  collateral 
inheritances  and  devises  to  others  than  those  specified  pre- 
sents no  difficulty.  It  is  the  will  of  the  legislature  to  make 
this  discrimination,  and  its  discretion  upon  the  subject  must 
be  regarded  as  having  been  duly  and  properly  exercised." 

So  when  the  question  came  before  the  supreme  court  of 
the  United  States  in  a  case  involving  an  alleged  conflict 
with  a  treaty,  Taney,  C.  J.,9  considered  the  law  to  be  noth- 
ing more  than  the  exercise  of  the  power,  possessed  by  every 
state,  of  regulating  the  manner  and  terms  upon  which 
property,  real  and  personal,  within  its  domain,  may  be 
transmitted  by  will  or  inheritance,  and  of  prescribing  who 
shall  and  who  shall  not  be  capable  of  taking  it. 

And,  in  Pennsylvania,  when  the  constitutional  question 
finally  came  before  the  supreme  court  of  the  state  in  1866,10 
it  received  elaborate  consideration,  and  was  sustained  upon 

o  Mager  v.  Grima,  8  How.  490. 

io  strode  v.  Com.,  52  Pa.  St.  181;  Clyiner  v.  Com.,  Id.  189.  See, 
also,  In  re  Short's  Estate,  16  Pa.  St.  63;  Com.  v.  Herman,  16  Wkly. 
Notes  Cas.  211,  212. 

LAW  INHER. — 3  (33) 


§    8  NATURE    OF   TAX    AND    ITS    CONSTITUTIONALITY.        [Ch.   2 

precisely  the  same  grounds  as  those  advanced  in  Eyre  v. 
Jacob.11 

The  court  adopted  the  opinion  of  Butler,  C.  J.,  in  the 
court  below.  He  said:  "The  estate  does  not  belong  to 
them  [collaterals,  etc.],  except  as  a  right  to  it  is  con- 
ferred by  the  state.  Independent  of  the  government,  no 
such  right  could  exist.  The  death  of  the  owner  of  prop- 
erty would  necessarily  terminate  his  control  over  it,  and 
it  would  pass  to  the  first  who  might  obtain  possession. 
The  right  of  the  owner  to  transfer  it  to  another,  after  death, 
or  of  kindred  to  succeed,  is  the  result  of  municipal  regula- 
tion, and  must,  consequently,  be  enjoyed  subject  to  such 
conditions  as  the  state  sees  fit  to  impose."  12 

Chapman,  J.,  in  the  same  case,  considered  that,  as  the 
legislature  had  the  power  to  regulate  the  laws  of  descent 
and  inheritance,  it  had  also  the  right,  as  a  condition,  of 
making  itself  a  kind  of  beneficiary  without  consideration, 
and  to  claim  a  share  of  the  property,  whether  exacted  as 
a  tax  or  duty. 

So  the  same  conclusions  have  been  reached  in  recent 
cases  in  Maine,  Massachusetts,  New  York,  Pennsylvania, 
and  other  states.13 

11  Supra. 

12  Citing  Bl.  Comm.  bk.  2,  pp.  10-13. 

is  Minot  v.  Winthrop  (1894)  162  Mass.  113,  116,  38  N.  E.  512,  dis- 
tinguishing Curry  v.  Spencer,  61  N.  H.  624;  State  v.  Hamlin  (1S94) 
86  Me.  501,  30  Atl.  76;  In  re  Hoffman's  Estate  (1894)  143  N.  Y. 
327,  38  N.  E.  311;  In  re  Sherwell's  Estate  (1891)  125  N.  Y. 
379,  26  N.  E.  464;  In  re  Swift,  137  N.  Y.  77,  32  N.  E.  1096;  In  re 
Merriam's  Estate  (1894)  141  N.  Y.  484,  36  N.  E.  505;  In  re  Cullum's 
Estate,  5  Misc.  Rep.  173,  25  N.  Y.  Sup.  700,  affirmed  76  Hun,  610,  27 
N.  Y.  Supp.  1105,  and  145  N.  Y.  593,  40  N.  E.  163,  mem.;  Small's  Estate 
(1892)  151  Pa.  St.  1,  25  Atl.  23.  And  see  elaborate  note  on  the  subject 
in  32  Am.  Law.  Reg.  (N.  S.)  364,  366.  See,  also,  In  re  Coming's  Es- 
tate, 3  Misc.  Rep.  160,  23  N.  Y.  Supp.  285;  In  re  Thomas,  3  Misc. 
Hep.  388,  24  N.  Y.  Supp.  713.  Contra,  Chambe  v.  Durfee  (1S95)  100 
(34) 


Ch.   2]       NATURE   OF   TAX    AND    ITS    CONSTITUTIONALITY.  §    8 

In  a  recent  case  in  Massachusetts,  where  the  law  was 
upheld  upon  this  ground,14  the  supreme  court  per  Field, 
C.  J.,  said:  "The  descent  or  devolution  of  property  on  the 
death  of  the  owner  *  *  *  has  always  been  regulated 
by  law.  We  have  no  occasion  in  these  cases  to  consider 
whether  the  legislature  has  the  power  to  make  the  com- 
monwealth the  universal  legatee  or  successor  of  all  the  prop- 
erty of  all  its  inhabitants  when  they  die,  for  the  purposes, 
not  only  of  paying  the  public  charges,  but  also  of  distrib- 
uting the  property  according  to  its  will  among  the  living 
inhabitants,  or  for  the  purpose  of  abolishing  private  prop- 
erty altogether.  We  assume  that  under  the  constitution 
this  cannot  be  done,  either  directly  or  indirectly;  that  the 
legislature  cannot  so  far  restrict  the  right  to  transmit  prop- 
erty by  will  or  by  descent  as  to  amount  to  an  appropriation 
of  property  generally;  that  it  cannot  impose  a  tax  which 
shall  be  equivalent,  or  almost  equivalent,  to  the  value  of 
the  property,  and  cannot  so  limit  the  persons  who  can  take 
as  heirs,  *  *  *  or  legatees;  that  the  great  mass  of  all 
the  property  of  the  inhabitants  must  become  vested  in  the 
commonwealth  by  escheat.  The  state  can  take  property 
by  taxation  only  for  the  public  service,  and  we  assume  that 
its  right  to  take  property,  if  any  exists,  by  regulating  the 
distribution  of  it  on  the  death  of  the  owner,  is  limited  in  the 
same  manner,  and  that  this  right  must  be  exercised  in  a  rea- 
sonable way.  Under  our  system  of  law  the  right  to  make 
a  will  or  testament,  and  the  right  to  transmit  or  take  prop- 
erty by  descent,  are  now  mainly,  if  not  wholly,  regulated  by 
law.15     If,  under  the  power  to  regulate  the  devolution  of 

Mich.  112,  58  N.  W.  G61;    State  v.  Mann  (1S90)  76  Wis.  469-478,  45 
N.  W.  526,  and  46  N.  W.  51;  State  v.  Ferris  (April,  1895)  supra,  p.  32. 

14  See  Appendix,  IV.,  Laws  Mass.  1891,  c.  425;  Minot  v.  Winthrop, 
supra. 

is  Citing  Mager  v.  Grima,  8  How.  490,  493;  Brettun  v.  Fox,  100 
.Mass.   234. 

(35) 


§    8  NATURE   OF    TAX    AND    ITS    CONSTITUTIONALITY.       [Ch.   2 

property  on  the  death  of  the  owner,  the  legislature  cannot 
take  away  altogether  the  inheritable  quality  of  property, 
yet  such  regulations  as  are  thought  reasonable  concern- 
ing the  persons  who  can  take  or  transmit  real  or  per- 
sonal property,  by  will  or  inheritance,  have  been  made  in 
every  civilized  state.  Taxes  on  legacies  and  inheritances, 
or  on  succession  in  any  form  to  property  on  the  death 
of  the  owner,  have  generally  been  considered,  not  as  taxes 
upon  property,  but  as  excises  upon  the  privilege  of  taking 
or  transmitting  property  in  this  way." 

So  with  regard  to  the  statute  of  Maine  passed  in  1893,16 
the  same  result  has  been  reached  by  the  supreme  court  of 
that  state.17 

In  reviewing  the  cases,  Strout,  J.,  said:  "The  tax  pro- 
vided for  in  the  statute  under  consideration  is  clearly  an 
excise  tax.18  The  whole  tenor  and  scope  of  the  act  is  one 
of  excise,  and  not  a  tax  upon  property,  as  that  term  is  used 
in  the  constitution.  It  is  not  laid  according  to  any  rule  of 
proportion,  but  is  laid  upon  the  interests  specified  in  the  act, 
without  any  reference  to  the  whole  amount  required  to  be 
raised  for  public  purposes,  or  to  the  whole  amount  of  prop- 
erty in  the  state  liable  to  be  assessed  for  public  purposes. 
It  is  time  that  the  act  contains  some  language  indicating  a 
tax  upon  property;  but  it  should  be  construed  according  to 
its  essential  principle,  object,  and  effect.  Substance,  and 
not  form  or  phrase,  is  the  important  thing.  All  exactions 
of  money  by  the  government  are  taxes ;  but  they  are  not  all 
levied  by  assessment  upon  values.  *  *  *  The  tax,  un- 
der this  statute,  is,  once  for  all,  an  excise  or  duty  upon  the 
right  or  privilege  of  taking  property,  by  will  or  descent,  un- 
der the  law  of  the  state." 

is  Laws  1893,  c.  146.    See  Appendix,  V. 
17  State  v.  Hamlin,  86  Me.  495,  30  Atl.  76. 

is  Seholey  v.  Rew,  23  Wall.  346.    See,  also,  State  v.  Ferris,  supra. 
(36) 


Ch.    2]       NATURE    OF   TAX    AND    ITS    CONSTITUTIONALITY.  §    8 

In  a  recent  case  in  Ohio,19  the  court  said:  "The  right  of 
the  general  assembly,  under  the  provisions  of  section  1  of 
article  ll,20  which  vests  the  legislative  power  of  the  state 
in  such  body  to  impose  excise  taxes,  must,  under  the  deci- 
sions of  the  supreme  court  of  the  state,  be  fully  recognized, 
and,  if  imposed  in  accordance  with  the  general  principles 
which  underlie  the  constitution,  must  be  held  to  be  valid." 

With  the  exception  of  Curry  v.  Spencer,21  the  constitu- 
tionality of  the  inheritance  tax  as  a  tax  upon  the  privilege 
or  right  of  inheritance  or  as  an  excise  has  not  been  serious- 
ly questioned.  Even  in  that  case,  and  in  others  where 
these  statutes  have  been  declared  unconstitutional,  it  will 
be  found  to  have  been  on  the  ground  of  a  violation  of  spe- 
cific provisions  of  the  state  constitution,  or  of  the  constitu- 
tion of  the  United  States.22 

Inasmuch  as  it  is  lawful  for  the  state  to  abolish  altogether 
the  privilege  of  acquiring  property  within  its  dominion,  by 
will  or  inheritance,  it  is  lawful  for  the  legislature  to  annex 
any  conditions  to  the  privilege  which  may  seem  expedient, 
and  do  not  conflict  with  the  organic  law  of  the  state,  or  with 
the  constitution  or  laws  of  the  United  States.23 

1 9  State  v.  Ferris. (April,  1895)  supra,  p.  32;  affirmed  23  Wldy. 
Law  Bui.  (Ohio)  July  1,  1895,  349,  352. 

20  Const.  Ohio. 

2i  61  N.  H.  624  (1S82). 

22  See  Chambe  v.  Durfee  (1894)  100  Mich.  112,  116,  5S  N.  W.  661; 
State  v.  Gorman  (1889)  40  Minn.  232,  41  N.  W.  948;  Mearkle  v.  Hen- 
nepin Co.  Com'rs  (1890)  44  Minn.  546,  47  N.  W.  165;  Van  Riper 
v.  Happenheimer  (Feb.,  1894)  17  N.  J.  Law  J.  49;  In  re  Dobermiller 
(Dec.,  1894)  Id.  378;    State  v.  Ferris  (April,  1895)  supra. 

23  Wallace  v.  Myers,  38  Fed.  1S4;  In  re  Sherwell's  Estate  (1S91) 
125  N.  Y.  379,  26  N.  E.  464;  Bell's  Gap  R.  Co.  v.  Pennsylvania,  134 
U.  S.  237,  10  Sup.   Ct.  533. 

(37) 


§    9  NATURE   OF    TAX    AND    ITS    CONSTITUTIONALITY.       [Ch.    2 

§  9.     Nature   of  Tax  in  New  York,  under  Act  of 

1892. 

So,  under  recent  decisions  in  New  York,  construing  the 
transfer  tax  act  passed  in  1892,24  notwithstanding  the  vari- 
ous changes  in  phraseology  contained  in  the  new  act,  the 
nature  of  the  tax  is  not  changed,  and  it  is  still  a  tax  upon 
the  privilege  or  right  of  succession  by  will  or  intestacy.25 

Notwithstanding  that  Gray,  J.,20  in  construing  the  act 
of  1887,  endeavored  to  show  that  the  statute  imposed  a  prop- 
erty tax,  the  other  judges  did  not  agree  with  him,  as  was 
stated  in  the  opinion :  "My  brethren  are  of  the  opinion  that 
the  tax  imposed  under  the  act  is  a  tax  on  the  right  of  suc- 
cession under  a  will,  or  by  devolution  in  case  of  intestacy, — 
a  view  of  the  law  which  my  consideration  precludes  my  as- 
senting to.'' 27 

And  when  the  subject  was  considered  later  by  the  court  in 
Be  Hoffman,28  Finch,  J.,  said:  "In  construing  the  collateral 
inheritance  tax  law  as  it  stood  prior  to  the  act  of  1892,  we 
had  occasion  to  decide  that  it  imposed  a  tax  upon  the  right 
of  succession  to  the  property  of  the  testator  or  intestate, 
which  vested  in  the  successors  severally,,  and  in  their  re- 
spective shares  or  proportions,  and  not  upon  the  property  or 
estate  of  the  decedent.     The  shares  received  in  the  hands 

24  See  Appendix,  I.,  Laws  N.  Y.  1892,  c.  399. 

2  5  in  re  Hoffman's  Estate  (1894)  143  N.  Y.  327,  38  N.  E.  311;  In  re 
Swift  (1893)  137  N.  Y.  77,  32  N.E.109G,  affirming  (Sup.)  19  N.Y.  Supp. 
292;  In  re  Merriam's  Estate  (1894)  141  N.  Y.  4S4,  36  N.  E.  505;  In 
re  Cullum's  Estate,  5  Misc.  Rep.  173,  25  N.  Y.  Supp.  700,  affirmed 
76  Hun,  610,  27  N.  Y.  Supp.  1105,  and  145  N.  Y.  593,  40  N.  E.  163, 
mem.;  Talmadge  v.  Seaman,  85  Hun,  242.  32  N.  Y.  Supp.  906,  re- 
versed as  In  re  Seaman  (Oct.  8,  1895;   Ct.  App.)  41  N.  E.  401. 

26  in  re  Swift,  supra. 

27  137  N.  Y.  88,  32  N.  E.  1096. 
2  8  143  N.  Y.  327,  38  N.  E.  311. 

(38) 


Ch.   2]       NATURE   OF    TAX    AND    ITS    CONSTITUTIONALITY.  §    9 

of  the  recipients  were  the  measures  of  the  right  which  was 
subjected  to  assessment,  and  the  imposed  tax  could  be  en- 
forced personally  against  the  successor  charged.  *  *  * 
The  act  of  1892  was  a  revision  of  the  whole  law  upon  the 
subject.  It  was  passed  with  knowledge  of  our  decisions, 
and  in  view  of  our  construction,  and  was  obviously  intended^ 
in  some  respects,  to  compel  on  our  part  different  conclusions. 
I  do  not  think  there  was  any  such  purpose  so  far  as  our 
general  doctrine  as  to  the  nature  of  the  tax  is  concerned. 
There  are  some  changes  of  phraseology  in  the  more  impor- 
tant sections,  but  I  think  it  remains  true  that  the  tax  is 
one  upon  the  right  of  succession,  levied  upon  successors  in 
respect  to  the  shares  to  which  they  succeed,  and  not  upon 
the  decedent's  estate  as  such." 

The  court  conceded,  however,  that  while  the  general  rule 
regarding  the  nature  of  the  tax  had  not  been  modified,  the 
definition  of  the  word  "property"  contained  in  29  the  act  had 
the  effect  of  limiting  the  exemption  declared  30  in  favor  of 
lineal  successors  to  estates  where  the  aggregate  property  of 
the  decedent  transferred  amounts  to  less  than  $10,000;  and 
where  several  lineals  succeed  to  personal  property  amount- 
ing in  the  aggregate  to  more  than  $10,000,  their  interests 
are  taxable,  though  each  beneficiary  may  succeed  to  less 
than  that  amount.  The  tax  is  under  this  act  declared  to 
be  upon  the  aggregate  estate  or  property  of  the  decedent, 
passing  to  taxable  persons  or  interests,  and  not  upon  the 
separate  share  of  the  devisee  or  legatee;  and  where  the 
estate  passes  to  collaterals  and  strangers  to  the  blood,  and 
is  worth  $500  or  more,  it  is  taxable,  notwithstanding  the  leg- 
atees take  less  than  that  sum.  Where  it  passes  to  lineal 
heirs,  and  the  aggregate  estate  is  personalty  worth  $10,000 
or  more,  it  is  also  taxable,  although  the  separate  shares  are 

»o  Section  22,  c,  399,  Laws  1892. 
so  By  section  2,  c.  399,  Laws  1892. 

(39) 


§    11  NATURE    OF    TAX    AND    ITS    CONSTITUTIONALITY.        [Ch.    2 

less.31  This  is  the  rule  adopted  under  the  statute  of  Penn- 
sylvania.32 And  in  New  York  it  overrules  the  earlier  cases 
under  the  statutes  in  existence  prior  to  the  act  of  1892.33 

§  10.  A  Tax  upon  a  "Commodity"  in  Massachusetts. 

In  Massachusetts  the  constitution  provides 34  that  the 
state  may  levy  duties  and  excises  "upon  any  produce,  goods, 
wares,  merchandise,  and  commodities  whatsoever,  brought 
into,  produced,  manufactured,  or  being  within  the  common- 
wealth." 

Under  this  provision  it  has  been  held  that  the  privilege 
of  transmitting  and  receiving,  by  will  or  descent,  property 
on  the  death  of  the  owner,  is  a  "commodity"  within  the 
meaning  of  the  constitution,  and  that  an  excise  in  the  na- 
ture of  an  inheritance  tax  may  be  laid  upon  it.35 

§  11.     Under  the  Constitution  of  Minnesota. 

In  Minnesota,  by  recent  amendment  to  the  constitution,36 
it  is  provided  that  there  may  be,  by  law,  levied  and  collected 
a  tax  upon  all  inheritances,  devises,  bequests,  legacies,  and 
gifts  of  every  kind  and  description,  above  a  fixed  and  speci- 
fied sum,  of  any  and  all  natural  persons  and  corporations. 

si  In  re  Hoffman,  143  N.  Y.  327,  38  N.  E.  311;  In  re  Hall's  Estate 
(Sup.)  34  N.  Y.  Supp.   G16. 

8  2  Chapter  3,  §  41. 

33  See  In  re  Hoffman's  Estate,  supra;  also  In  re  Cager's  Will, 
111  N.  Y.  345,  18  N.  E.  806;  In  re  Howe,  112  N.  Y.  100,  19  N.  E. 
513. 

84  Part  2,  c.  1,  §  1,  art.  4. 

sb  Minot  v.  Winthrop  (1894)  162  Mass.  113,  38  N.  E.  512. 

se  Adopted  November  6,  1S94.    See  1  St.  Minn.  1894,  Const,  art.  9, 
§  1.     See  note  on  proposed  tax,  2  Minn.  Law  J.  (May,  1894)  123. 
This  provision  was  evidently  inserted  to  meet  the  ruling  in  State 
v.  Gorman,  40  Minn.  232,  41  N.  W.  948. 
(40) 


Ch.  2]       NATURE    OF    TAX    AND    ITS    CONSTITUTIONALITY.  §    13 

Such  a  tax,  above  such  exempted  sum,  may  be  uniform,  or 
it  may  be  graded  or  progressive,  but  shall  not  exceed  a  max- 
imum tax  of  5  per  cent. 

§  12.     Under  the   Federal  "Income  Tax"  of  1894. 

Under  the  act  of  congress  passed  August  28,  1894,  a  tax 
of  2  per  cent,  was  imposed  upon  all  gains,  profits,  and  in- 
comes received  from  "money  and  the  value  of  all  personal 
property  acquired  by  gift  or  inheritance."  37  While  this  pro- 
vision of  the  act  would  have  given  rise  to  much  litigation  on 
account  of  its  obscure  and  ambiguous  language,  it  was  not 
a  proper  tax  to  associate  with  the  income  tax  system.  As 
the  whole  act  has,  however,  been  declared  unconstitutional, 
no  practical  purpose  is  accomplished  by  the  discussion  of 
that  part  of  the  act  relating  to  the  inheritance  tax.38 

§  13.     Not  a  Property  Tax. 

In  accordance  with  the  views  given  above,  it  has  been 
uniformly  held  that  the  tax  is  not  a  property  tax  within 
the  meaning  of  the  various  provisions  of  the  federal  and 
state  constitutions.39 

3  7  Section  28. 

as  Pollock  v.  Farmers'  Loan  &  Trust  Co.,  157  U.  S.  429,  15  Sup. 
Ct.   673. 

39  See  cases,  section  2,  supra;  also,  In  re  Sherwell's  Estate  (1891) 
125  N.  Y.  379,  26  N.  E.  464;  In  re  Knoedler's  Estate  (1893)  140  N.  Y. 
379,  35  N.  E.  601 ;  In  re  Merriarn's  Estate  (1894)  141  N.  Y.  484.  36  N.  E. 
505;  In  re  Cullum's  Estate,  5  Misc.  Rep.  173,  25  N.  Y.  Supp.  700, 
affirmed  76  Hun,  610,  27  N.  Y.  Supp.  1105,  and  145  N.  Y.  593,  40  N. 
E.  1(J3;  State  v.  Hamlin  (1894)  86  Me.  495,  30  Atl.  76;  In  re  Tuigg's 
Estate  (Suit.)  15  N.  Y.  Supp.  548;  In  re  Carver's  Estate  (1893)  25 
N.  Y.  Supp.  991,  5  Misc.  Rep.  173;  In  re  Swift  (1893)  137  N.  Y.  77, 
88,  32  N.  E.  1096,  Gray,  J.,  dissenting;  In  re  Small's  Estate,  151  Pa. 
St  1,  25  Atl.  23,  28;    State  v.  Ferris  (April,  1895)  9  Ohio  Cir.  Ct.  R. 

(41) 


§  13  NATURE    OF    TAX    AND    ITS    CONSTITUTIONALITY.        [C!l.    2 

It  was  said  by  Lee,  J.:40  "The  property  tax  which  the 
framers  of  the  constitution  were  contemplating  *  *  * 
was  the  ordinary  annually  recurring  tax  for  the  support  of 
government,  laid  upon  all  property  whatsoever.  They  had 
no  reference  to  casual  subjects  of  taxation  occurring  irreg- 
ularly and  occasionally,  which,  though  connected  with  prop- 
erty, were  yet  readily  to  be  distinguished  in  their  essen- 
tial character  and  features."  41 

And  in  a  recent  case  in  New  York,  where  the  constitu- 
tionality of  the  act  was  in  question,  the  same  views  were 
announced,  and  a  majority  of  the  court  went  so  far  as  to 
hold  that  it  was  not  important  to  determine  whether  the 
act  was  to  be  regarded  as  imposing  a  tax  on  property  or 
upon  the  succession  or  devolution  of  property  by  will  or 
intestacy;  whether  one  or  the  other,  it  was  held  constitu- 
tional in  all  respects.42 

Whether  the  object  of  taxation  be  regarded  as  the  prop- 
erty which  passes  or  the  person  who  takes  it  is  a  wholly 
immaterial  question.  The  legislature  is  not  restricted  in 
the  selection  of  its  subjects  for  the  raising  of  revenue  for 

299,  affirmed  as  State  of  Ohio  ex  rel.  v.  Ferris,  23  Wkly.  Law  Bui. 
(Ohio)  July  1,  1895,  349,  352.  The  opinion  will  be  published  in  the 
N.  E.  Rep.  as  soon  as  handed  down.  See  note  to  32  Am.  Law  Reg. 
(N.  S.)  364,  where  the  author  says:  "In  view  of  the  federal  de- 
cisions fixing  the  status  of  this  form  of  taxation,  it  seems  absurd  to 
regard  succession  charges  as  property  taxes.  *  *  *  It  is  upon 
the  idea  that  the  tax  is  the  price  paid  for  the  privilege  of  succession 
that  its  constitutionality  has  been  upheld  when  applied  to  the 
transmission  of  United  States  securities." 

40  Eyre  v.   Jacob,   supra.    And   see  In  re   McPherson,   104  N.   Y. 
306,  10  N.  E.  685;   Com.  v.  Maury,  82  Va.  883,  1  S.  E.  1S5. 

4i  See,  also,  State  v.  Hamlin,  86  Me.  502,  30  Atl.  76. 

42  in  re  McPherson,  104  N.  Y.  306,  10  N.  E.  685;  In  re  Swift, 
137  N.  Y.  77,  32  N.  E.  1096;  Wallace  v.  Myers,  38  Fed.  184.  See  In 
re  Hoffman,  143  N.  Y.  327,  38  N.  E.  311;  In  re  Howard,  5  Dem. 
Sur.  483;  In  re  Sherwell's  Estate  (1S91)  125  N.  Y.  379,  26  N.  E. 
464,  affirming  (Sup.)  12  N.  Y.  Supp.  200. 
(42) 


Ch.   2]       NATURE    OF   TAX    AND    ITS    CONSTITUTIONALITY.  §    15 

state  uses.  In  such  respects  it  is  sovereign,  and  is  with- 
out other  control  than  the  restrictions  found  in  the  funda- 
mental law  of  the  state.43 

In  another  case  in  North  Carolina  the  court  seem  to  have 
reached  the  conclusion  that  the  tax  was  not  a  property  tax, 
but  one  upon  the  succession  to  property,  without  being 
aware  of  any  previous  authority  upon  the  question.44 

So  a  tax  upon  a  legacy  to  the  United  States  government 
is  not  a  tax  upon  federal  property  within  the  prohibitions 
of  the  federal  constitution.45  Nor  is  this  a  tax  upon  real  or 
personal  property,  under  the  constitution  of  Maine.46 

§  14.     Not  a  Direct  Tax. 

Nor  is  it  a  direct  tax  upon  land,  taken  by  descent,  with- 
in the  meaning  of  the  federal  constitution,  but  it  is  more 
in  the  nature  of  an  impost  or  excise  upon  the  devolution 
of  the  estate,  or  the  right  to  become  beneficially  entitled 
thereto,  or  to  the  income  thereof.47 

§  15.     Taxing  Foreign  Real  Estate — When  Void  as 
Direct  Tax. 

But  as  real  estate  is  not  drawn  to  the  person  or  dom- 
icile of  the  owner  for  taxation,  it  cannot  be  taxed  direct- 
ly by  these  laws,  outside  the  jurisdiction  where  it  is  situ- 

43  in  re  Sherwell's  Estate,  supra. 

4  4  Pullen  v.  Commissioners  of  Wake  Co.  (1S72)  66  N.  C.  363. 

45  in  re  Merriam's  Estate  (1S94)  141  N.  Y.  484,  36  N.  E.  505;  In 
re  Cullum's  Estate,  5  Misc.  Rep.  173,  25  N.  Y.  Supp.  700,  affirmed 
76  Hun,  610,  27  N.  Y.  Supp.  1105,  and  145  N.  Y.  593,  40  N.  E.  163, 
mem.    See  32  Am.  Law  Reg.  (N.  S.)  364,  366. 

46.Const  Me.  art.  9,  §  8;  State  v.  Hamlin  (1894)  86  Me.  495,  30 
Atl.  76. 

47  Scholey  v.  Rew  (1874)  23  Wall.  331.  See,  also,  Strode  v.  Com., 
supra;  Com.  v.  Herman,  16  Wkly.  Notes  Cas.  211,  212;  Minot  v.  Win- 

(43) 


§    15  NATURE    OP   TAX    AND    ITS    CONSTITUTIONALITY.       [Ch.    2 

ated.  Such  a  tax  is  a  direct  tax  upon  the  thing  devised 
in  the  hands  of  the  devisee,  and  it  is  a  tax  which  the 
state  is  powerless  to  enforce,  hence  the  collateral  inher- 
itance law  of  Pennsylvania,  passed  in  1887,  which  sought  to 
tax  real  estate  situated  in  Maryland,  was,  pro  tanto,  held 
unconstitutional,  or,  at  least,  incapable  of  enforcement.48 

In  Commonwealth's  Appeal,49  Paxson,  J.,  said:  "While 
it  is  conceded  that  the  powers  of  the  state  for  taxing  pur- 
poses are  very  great,  they  are  necessarily  limited  to  either 
property  or  persons  within  her  borders.  All  property  of 
the  citizen  within  the  state  may  be  taxed,  and  all  such 
property  outside  the  state  as  is  drawn  to  or  follows  in  law 
the  person  or  domicile  of  the  owner,  such  as  bonds  and 
mortgages,  moneys  at  interest,  etc.,  no  matter  where  situ- 
ate. *  *  *  It  may  be  that  the  state  might  impose  a 
succession  tax  upon  every  citizen  of  the  state  who  succeeds 
to  either  real  or  personal  property,  from  whatever  source 
derived.  This  is  not  such  a  tax.  *  *  *  It  is  a  direct 
tax  upon  the  thing  devised  in  the  hands  of  the  devisee, 
a  tax  which  the  state  is  powerless  to  enforce."  50 

throp  (1894)  162  Mass.  113,  38  N.  E.  512;  State  v.  Hamlin  (1894) 
86  Me.  502,  30  Atl.  76. 

4  8  Appeal  of  Commonwealth  (Bittinger's  Estate;  1SS9)  129  Pa.  St. 
338,  18  Atl.  132,  distinguishing  Com.  v.  Smith,  5  Pa.  St.  142.  The 
court  declined  to  pass  upon  the  constitutional  question  raised  by  the 
title  of  the  act.  See  Del  Busto's  Estate,  23  Wkly.  Notes  Cas.  111. 
See,  also,  Com.  v.  Coleman,  52  Pa.  St.  468;  Kintzing  y.  Hutchin- 
son (U.  S.  Cir.  Ct;  1877)  34  Leg.  Int.  365,  Fed.  Cas.  No.  7,834;  Dray- 
ton's Appeal,  61  Pa.  St.  172;  Miller  v.  Com.,  Ill  Pa.  St.  321,  2  Atl. 
492;  Hood's  Estate,  21  Pa.  St.  106;  In  re  Hale's  Estate  (1894)  161 
Pa.  St.  181,  28  Atl.  1071.  See  Williamson's  Estate  (1893)  153  Pa.  St. 
508,  26  Atl.  246,  and  32  Am.  Law  Rev.  (N.  S.)  472,  and  note  by  H. 
W.  Page.  In  re  Wolfe's  Estate,  19  N.  Y.  St  Rep.  263;  In  re  Swift, 
137  N.  Y.  77,  32  N.  E.  1096. 

4  9  Appeal  of  Commonwealth,  supra. 

co  But  see  In  re  Howard,  5  Dem.  Sur.  483;   In  re  McPherson,  104 
N.  Y.  306,  10  N.  E.  685. 
(44) 


Ch.    2]       NATURE    OF    TAX    AND    ITS    CONSTITUTIONALITY.  §    16 

Tliis  rule  does  not,  however,  apply  where  land  outside  of 
the  taxing  state  is  directed  by  will  to  be  converted  into  per- 
sonalty.51 It  is  then  deemed  personalty,  and  in  some  states 
is  subject  to  the  tax  law  of  the  owner's  domicile.02 

The  contrary  view  of  this  subject  has  been  taken  under 
the  New  York  statutes,  but  the  law  of  equitable  conver- 
sion has  not  been  thoroughly  considered  in  that  state  with 
reference  to  the  inheritance  tax.58 


§  16.     As  to  Being  a  General  or  Special   Tax  Law. 

It  has  been  held  to  be  a  general,  and  not  a  special,  law, 
and  thus  constitutional,  as  such,  within  the  law  of  Mary- 
land; 54  while  in  New  York,  and  some  other  states,  it  has 
been  held  to  be  a  special  tax,  but  valid  as  such.55 

The  constitution  of  Michigan  50  provides  that  all  specific 
taxes,  except  those  received  from  certain  mining  companies, 

bi  See  the  subject  considered  chapter  4,  §  46,  subd.  (b). 

52  Miller  v.  Com.  (1SS6)  111  Pa.  St.  321,  2  Atl.  492;  Williamson's 
Estate  (1893)  153  Pa.  St.  508,  26  Atl.  246,  and  32  Am.  Law  Rev.  (N.  S.) 
472,  and  note  by  H.  W.  Page,  Esq.,  entitled  "Collateral  Inheritance 
Tax.  Conversion  of  Land  outside  of  State."  See,  also,  Hale's  Es- 
tate (1S94)  161  Pa.  St.  181,  28  Atl.  1071,  where  the  preceding  cases 
are  distinguished.  See  In  re  Howard,  5  Dem.  Sur.  4S6;  In  re  Wheel- 
er's Estate,  1  Misc.  Rep.  450,  22  N.  Y.  Supp.  1075,  1078,  and  cases 
cited.  Chapter  4,  §  46  (b).  Contra,  In  re  Swift,  137  N.  Y.  77,  32  N. 
E.  1096;   In  re  Secor's  Estate,  N.  Y.  Law  J.  (June  22,  1893)  p.  779. 

53  See  cases  supra.  Also,  In  re  Raymond  (Nov.  19,  1894)  12  N.  Y. 
Law  J.  453;  Sherrill  v.  Christ  Church  (1890)  121  N.  Y.  701,  25  N.  E. 
50;   In  re  Curtis,  142  N.  Y.  221,  36  N.  E.  887;  Hale's  Estate,  supra. 

54  Montague  v.  State  (1S80)  54  Md.  482. 

so  In  re  McPherson  (1887)  104  N.  Y.  306,  10  N.  E.  685;  In  re  Will  of 
Enston,  113  N.  Y.  178,  21  N.  E.  87;  Eyre  v.  Jacob,  14  Grat.  436;  Tyson 
v.  State  (1868)  28  Md.  577;  State  v.  Dalrymple,  70  Md.  294, 17  Atl.  82; 
In  re  Sherwell's  Estate  (1891)  125  N.  Y.  379,  26  N.  E.  464,  affirming 
58  Hun,  608,  12  N.  Y.  Supp.  200. 

6  6  Article  14,  §  1. 

(15) 


§18  NATURE    OF   TAX    AND    ITS    CONSTITUTIONALITY.        [Ch.   2 

shall  be  applied  in  paying  interest  on  certain  educational 
funds  and  the  state  debt,  until  paid,  and  thereafter  shall 
be  added  to  the  primary  school  interest  fund. 

The  act  of  that  state,  passed  in  1893, 57  taxing  certain 
transfers  of  property  by  gift  or  inheritance,  and  providing 
that  the  taxes  collected  thereunder  should  be  paid  into  the 
state  treasury,  and  applied  "to  the  expenses  of  the  state 
government  and  to  such  other  purposes  as  the  legislature 
shall  by  law  direct,"  was  declared  unconstitutional  as  con- 
flicting with  the  above  provisions.58 

§  17.     Not  a  Poll  Tax. 

It  is  not  within  the  constitutional  prohibition  against 
levying  a  poll  tax,  exempting  paupers,  etc. 


5  9 


§  18.     As  to  Being  an  Equal  and  Uniform  Tax. 

Nor  does  a  law  imposing  such  tax  conflict  with  a  general 
constitutional  requirement  that  all  taxes  shall  be  equal  and 
uniform  within  the  state,  or  apportioned  and  assessed 
equally.61 

67  Act  No.  205,  Pub.  Acts  1893,  p.  344. 

ss  Chambe  v.  Durfee  (1894)  100  Mich.  112,  58  N.  W.  661. 

6  9  Tyson  v.  State,  28  Md.  577. 

6i  Eyre  v.  Jacob  (1858)  14  Grat.  427;  Tyson  v.  State,  28  Md.  577; 
Pullen  v.  Commissioners  of  Wake  Co.  (1872)  66  N.  C.  361;  Peters  v. 
City  of  Lynchburg  (1882)  76  Va.  927;  Schoolfield  v.  City  of  Lynchburg 
<1884)  78  Va.  367;  State  v.  Hamlin  (1894)  86  Me.  502,  30  Atl.  76;  Minot 
v.  Winthrop  (1894)  162  Mass.  116,  38  N.  E.  516.  Contra,  Curry  v. 
Spencer,  61  N.  H.  630,  where  Blodgett,  J.,  criticising  Eyre  v.  Jacob 
and  Tyson  v.  State,  supra,  said:  "It  is  apparent  that  these  decisions 
can  have  no  weight  in  New  Hampshire;  and  immunity  from  dispro- 
portional  taxation  being  expressly  reserved  in  our  bill  of  rights,  and 
the  power  of  proportional  taxation  only  being  granted  to  the  legis- 
lature by  the  constitution,  we  are  unaware  of  any  ground  upon  which 
(46) 


Ch.    2]       NATURE    OF   TAX    AND    ITS    CONSTITUTIONALITY.  §    18 

Those  provisions  contemplate  only  the  general  recurring 
assessment  upon  the  same  property,  and  do  not  include 
occasional,  exceptional,  and  special  subjects  and  modes  of 
taxation,  like  the  inheritance  and  other  privilege  taxes.62 

The  terms  "equal1'  and  "uniform"  apply  only  to  a  direct 
tax  on  property,  and  do  not  limit  the  power  of  the  legis- 
lature as  to  the  object  of  the  tax.  They  are  intended  to  pre- 
vent an  arbitrary  tax  on  property,  according  to  kind  or 
quality,  without  regard  to  value.63 

While  providing  for  a  uniform  mode  of  taxation  on  prop- 
erty, it  was  not  the  purpose  of  the  constitution  to  prohibit 
any  other  species  of  tax,  but  to  leave  the  legislature  the  pow- 
er to  impose  such  other  taxes  as  the  interests  of  the  govern- 
ment might  require.64 

Where  the  tax  is  made  to  apply  to  every  estate  which  is 
bequeathed  or  devised  to,  or  inherited  by,  the  person  speci- 
fied in  the  act,  it  is  equal,  and  free  from  objections  on  legal 

the  statute  under  consideration  can  be  upheld;  for,  if  it  is  to  be  re- 
garded as  a  tax  on  property,  it  is  open  to  the  objection  of  unequal 
and  double  taxation,  and  if  it  is  to  be  regarded  as  a  tax  on  a  civil 
right  or  privilege  it  is  discriminating  and  disproportional."  It  may 
be  said  that  this  decision  is  in  conflict  with  every  well-considered  ad- 
judication upon  this  subject.  See  State  v.  Ferris  (April,  1S95)  9 
Ohio  Cir.  Ct.  R.  299,  affirmed  as  State  ex  rel.  v.  Ferris,  23  Wkly. 
Law  Bui.  (Ohio)  July  1,  1895,  349,  352.  Opinion  will  be  published  in 
N.  E.  Rep.  as  soon  as  handed  down. 
6  2  State  v.  Hamlin,  supra, 

63  id.;  decisions  supra. 

64  Tyson  v.  State,  28  Md.  577;  State  v.  Dalrymple,  supra;  Bell's 
Gap  R.  Co.  v.  Pennsylvania,  134  U.  S.  237,  10  Sup.  Ct.  533.  A  statute 
of  Minnesota  requiring,  as  a  condition  precedent  to  probate  proceed- 
ings for  the  settlement  of  estates,  the  payment  to  the  county  treasurer 
of  specified  sums  arbitrarily  prescribed  with  reference  to  the  value 
of  the  estate,  held  unconstitutional,  being  contrary  to  the  requirement 
of  equality  of  taxation  and  the  dispensation  of  justice  freely  and 
without  purchase.  State  v.  Gorman,  40  Minn.  2;J2,  41  N.  W.  948; 
Sfate  v.  Mann,  76  Wis.  469,  45  N.  W.  530;  Bradford  v.  Jones,  1  Md. 
368;   Harrison  v.  WilUs,  7  Heisk.  35. 

(47)  . 


§    18  NATURE   OP    TAX    AND    ITS    CONSTITUTIONALITY.        [Ch.    2 

grounds.85  So  in  Minot  v.  Winthrop ea  the  court  said,  in  refer- 
ring to  the  Massachusetts  statute:  "The  tax  imposed  by  the 
statute  we  are  considering  is  said  to  be  unequal  because  it 
is  not  imposed  upon  all  estates,  and  upon  all  heirs,  devisees, 
legatees,  and  distributees.  To  make  a  distinction  between 
collateral  kindred  or  strangers  in  blood  and  kindred  in  the 
direct  lines  in  reference  to  the  assessment  of  such  a  tax, 
either  by  exempting  the  kindred  in  the  direct  line,  or  by 
imposing  on  collaterals  and  strangers  a  higher  rate  of  tax- 
ation, has  the  sanction  of  nearly  all  states  which  have  levied 
taxes  of  this  kind.  It  has  a  sanction  in  reason,  for  the 
moral  claim  of  collaterals  and  strangers  is  less  than  that  of 
kindred  in  the  direct  line,  and  the  privilege  is  therefore 
greater.  The  tax  imposed  by  this  statute  is  uniformly  im- 
posed upon  all  estates  and  all  persons  within  the  descrip- 
tion contained  in  it,  and  the  tax  is  not  plainly  and  grossly 
oppressive  in  amount." 

The  direct  inheritance  tax  of  Ohio  67  has  been  declared 
unconstitutional,  as  violating  the  rule  of  uniformity  and 
equality,  in  that  the  exemptions  under  the  act  were  restrict- 
ed to  estates  of  a  certain  class,  and  did  not  include  all  per- 
sons. 

Smith,  J.,  in  the  lower  court,  said:  "But  all  laws  com- 
prising such  excise  taxes  must,  in  accordance  with  the 
reason  and  spirit  of  the  constitution,  be  uniform  in  their 
operation.68  *  *  *  Nor  can  they  be  upheld  if  substan- 
tially and  necessarily  unequal  and  unjust.  In  our  judg- 
ment, the  statute  in  question  is  in  contravention  of  this 
principle.  It  provides  °9  that  'when  the  value  of  the  entire 
property  of  such  decedent  exceeds  the  sum  of  $20,000,  and 

6  5  in  re  Sherwell's  Estate,  125  N.  Y.  379,  26  N.  E.  464. 
ee  Supra. 

«7  Appendix,  VI.  c,  Act  1894  (91  Ohio  Laws,  p.  166.) 
6  8  Citing  Northern  Indiana  R.  Co.  v.  Connelly,  10  Ohio  St.  160. 
6  9  Laws  Ohio  1894,  p.  166,  §  1,  Appendix,  VI.  b. 
(48) 


Ch.    2]       NATURE    OF   TAX    AND    ITS    CONSTITUTIONALITY.  §    18 

does  not  exceed  the  sum  of  $r>0,000,  the  tax  shall  be  one 
per  cent.;  when  it  exceeds  f 50,000,  and  does  not  exceed 
$100,000,  one  and  one-half  per  cent.';  and  then  it  pro- 
ceeds to  fix  higher  rates  of  taxes  on  higher  grades.  There 
is  no  exemption  to  all  persons  of  taxes  on  property  of 
the  value  of  $20,000,  but  if  the  amount  or  value  of  the 
property  which  so  passes  is  less  than  $20,000  no  tax  is 
imposed  thereon.  But  if  the  amount  or  value  of  the  es- 
tate  be  over  $20,000,  say  $20,001,  then  the  tax  must  be 
paid  on  the  whole  sum,  and  not  simply  on  the  amount  over 
$20,000.  And  thus  in  the  first  case  the  person  taking 
the  estate  would  receive  the  whole  amount  thereof,  while  in 
the  other  case  he  would  receive  but  $19,800,  which  seems 
manifestly  unequal  and  unjust.  If  the  statute  exempted 
$20,000  (or  any  other  sum)  of  every  estate  from  taxation,  it 
would,  in  our  judgment,  be  equal  and  valid,  even  in  impos- 
ing a  graded  tax,  as  it  does.  But,  as  it  stands,  we  are  of 
the  opinion  that  it  violates  the  principle  of  uniformity  and 
equality  which  must  be  found  in  all  laws  imposing  taxes 
of  every  kind."  70  But  such  act  was  held  not  in  conflict 
with  the  constitution,71  providing  that  "all  laws  of  a  general 
nature  shall  have  a  uniform  operation  throughout  the 
state."  72  Upon  appeal  to  the  supreme  court,*  Burke,  J., 
held  that  the  act,  by  its  exemption  from  taxation  of  the 
right  to  receive  or  succeed  to  estates  not  exceeding  $20,000 
in  value,  and  taxing  the  whole  right  of  receiving  or  succeed- 
ing to  estates  which  exceed  that  sum  in  value,  and  in  tax- 
ing at  a  higher  rate  per  centum  the  right  to  receive  or  suc- 
ceed to  estates  of  larger  value  than  to  estates  of  smaller 
value,  was  in  conflict  with  section  2  of  the  bill  of  rights  of 
the  constitution  of  Ohio,  declaring  that  "all  political  power 
is  inherent  in  the  people.  Government  is  instituted  for 
their  equal  protection  and  benefit";  and  the  whole  act  was 

7«  State  v.  Ferris,  supra.  ?2  State  v.  Ferris,  supra. 

7i  Const.  Ohio,  art.  11,  §  26.  *  State  v.  Ferris,  supra. 

LAW  IXHER.  —  4  (49) 


§19  NATURE   OF   TAX    AND    ITS    CONSTITUTIONALITY.        [Ch.    2 

therefore  declared  unconstitutional  and  void.  It  was  also 
held  that  the  first  section  of  the  fourteenth  amendment  to 
the  federal  constitution,  providing  that  no  state  shall  "deny 
to  any  person  *  *  *  the  equal  protection  of  the  laws," 
was  not  broader  than  the  second  section  of  the  state  bill  of 
rights.  A  statute  somewhat  similar  to  that  of  Ohio  is  now 
in  force  in  Illinois,  having  gone  into  effect  July  1,  1895.73 

§  19.     Double  Taxation. 

There  is  nothing  in  the  federal  constitution  that  forbids 
double  or  unequal  taxation  by  a  state.74  Hence,  the  privi- 
lege under  these  laws  may  be  taxed,  although  the  property 
is  also  taxed;75  and  it  makes  no  difference  that  the  same 
tax  is  imposed  upon  the  succession  in  another  state.76 

The  result  of  double  taxation,  however,  is  one  which  the 
courts  are  inclined  to  avoid,  whenever  it  is  possible,  within 
reason,  to  do  so.77 

73  See  statute,  Appendix,  X. 

74  Davidson  v.  New  Orleans,  96  U.  S.  97-106;  In  re  Enston's  Will, 
113  N.  Y.  1S2,  21  N.  E.  87;  Beinis  v.  Boston,  14  Allen,  368;  People 
v.  Coleman,  119  N.  Y.  137,  23  N.  E.  488.  As  to  double  taxation,  see 
5  Political  Science  Quarterly  (Dec,  1800)  637. 

7  5  Eyre  v.  Jacob,  14  Grat.  427.  Contra,  Curry  v.  Spencer,  61  N.  H. 
630. 

7c  Com.  v.  Sharpless,  2  Chest.  Co.  Rep.  (Pa.)  246;  Com.  v.  Schu- 
macher, 9  Lancaster  Bar  (Pa.)  199.  But  see  In  re  Enston's  Will, 
supra;  Bonaparte  v.  Tax  Court,  104  U.  S.  595;  In  re  Strong,  17  N. 
J.  Law  J.  234. 

77  in  re  .Tames  (1894)  144  N.  Y.  6,  38  N.  E.  961,  affirming  77  Hun, 
213,  28  N.  Y.  Supp.  351,  and  6  Misc.  Rep.  206,  27  N.  Y.  Supp.  288.   See 
In  re  Coleman's  Estate  (1S93)  159  Pa.  St.  231,  28  Atl.  137. 
(50) 


Ch.  2]       NATURE    OF   TAX    AND    ITS    CONSTITUTIOiNALITY.  §    21 


§  20.     Not  a  Taking  of  Private  Property,  etc. 

Nor  is  it  a  taking  of  private  property  without  compensa- 
tion.78 

The  statute  of  Maine70  does  not  conflict  with  the  state 
constitution  80  prohibiting  the  taking  of  private  property  for 
public  uses  without  just  compensation.  The  latter  provi- 
sion is  limited  to  the  exercise  of  the  right  of  eminent  do- 
main, and  does  not  extend  to  the  subject  of  taxation.81 

Nor  does  this  statute  conflict  with  the  constitution  of  the 
state,82  that  no  person  shall  be  deprived  of  his  property  or 
privileges  but  by  judgment  of  his  peers,  or  by  the  law  of  the 
land.83 

The  provisions  of  the  New  York  constitution,  that  no  per- 
son shall  be  deprived  of  property  without  due  process  of 
law,  nor  property  taken  for  public  use  without  just  compen- 
sation, have  no  application  to  the  exercise  of  the  taxing 
power.84 

§  21.     Need  not  State  Object  of  Tax. 

It  is  not  necessary  that  the  act  should  state  the  object  of 
the  tax,  or  to  what  purpose  it  is  to  be  applied,  under  the 
New  York  constitution,  as  that  provision  was  only  intended 
to  apply  to  the  annually  recurring  taxes  known  at  the  time 
of  the  constitution's  adoption.85     In  Michigan,  however,  a 

ts  strode  v.  Com.  (1866)  52  Pa.  St.  1S6;  People  v.  Mayor,  etc.,  of 
Brooklyn,  4  N.  Y.  419. 

7  8  Appendix,  V. 
so  Article  1,  §  21. 

8i  State  v.  Hamlin  (1894)  86  Me.  501,  30  Atl.  76. 

82  Article  1,  §  6. 

83  State  v.  Hamlin,  supra. 

84  People  v.  Mayor,  etc.,  of  Brooklyn,  supra. 

8  5  in  re  McPkerson,  104  N.  Y.  306,  10  N.  E.  6S5;  s.  p.,  Eyre  v.  Jacob, 
14  Grat.  427. 

(51) 


§    22  NATURE    OF    TAX    AND    ITS    CONSTITUTIONALITY.        [Ch.   2 

statute  was  held  void  for  failure  to  distinctly  state  the  tax 
and  the  object  to  which  it  was  to  be  applied.86  And  in  New 
Jersey  the  statutes  87  have  been  declared  unconstitutional 
and  void  so  far  as  they  attempt  to  tax  devises  of  land,  for 
the  reason  that  the  titles  of  the  acts  do  not  express  a  pur- 
pose to  include  real  estate.88  The  defect  indicated  is,  how- 
ever, avoided  by  the  act  of  1894,f  but  this  statute  does  not 
apply  to  property  passing  by  will  before  the  act  was  ap- 
proved.J 

§  22.     As  to  Notice  and  Hearing. 

But  parties  against  whom  it  is  sought  to  assess  the  tax 
have  a  constitutional  right  to  notice,  and  to  an  opportunity 
for  a  hearing  upon  the  assessment.  It  would  seem  that  all 
the  statutes  upon  this  subject  sufficiently  provide  for  such 
notice  and  hearing,  so  as  to  obviate  any  constitutional  ob- 
jection, either  under  the  state  constitutions  or  under  the 
fourteenth  amendment  to  the  federal  constitution.89 

The  statute  of  Maine  90  does  not  conflict  with  the  latter 
provision. 

"The  act 91  provides  for  an  appraisal  of  the  estate  subject 

se  Const.  Mich.  art.  14,  §  14;  Cbanibe  v.  Durfee  (1S94)  100  Mich. 
112,  58  N.  W.  661. 

87  See  Appendix,  II. 

8s  Van  Riper  v.  Happenheimer,  17  N.  J.  Law  J.  (Feb.,  1S94)  49; 
In  re  Dobermiller,  Id.  (Dec.,  1894)  378. 

t  Appendix,  II. 

t  State  v.  Hancock  (N.  J.;    1895)  32  Atl.  689. 

ss  Cooley,  Tax'n  (2d  Ed.)  362,  363;  In  re  McPherson,  104  N.  Y.  306, 
10  N.  E.  685;  Wallace  v.  Myers,  38  Fed.  184,  citing  Railroad  Co.  v. 
Richmond,  96  U.  SS.  521;  Barbier  v.  Connolly,  113  U.  S.  27,  5  Sup.  Ct. 
357;  Wurts  v.  Hoagland,  114  U.  S.  606,  5  Sup.  Ct.  1086;  Kentucky 
Railroad  Tax  Cases,  115  U.  S.  321,  6  Sup.  Ct.  57;  State  v.  Hamlin 
(1894)  86  Me.  507,  30  Atl.  76. 

so  See  Appendix,  V. 

si  Section  12,  Appendix,  V 
(52) 


Ch.   2]       NATURE   OF   TAX    AND    ITS    CONSTITUTIONALITY.  §    23 

to  the  excise,  upon  application  to  the  probate  court,  by  the 
state  assessors,  or  any  person  interested  in  the  estate;  and  92 
the  probate  court  having  jurisdiction  of  the  settlement  of 
the  estate  is  authorized  to  'hear  and  determine  all  questions 
in  relation  to  said  tax  that  may  arise,'  etc.,  'subject  to  ap- 
peal as  in  other  cases.'  These  provisions  fully  secure  the 
rights  of  all  parties  interested,  and  satisfy  the  requirements 
of  'due  process  of  law.' "  93 


§  23.     Due  Process  of  Law  not  Violated. 

Nor  do  these  statutes  violate  the  provisions  of  the  four- 
teenth amendment  to  the  constitution,  prohibiting  any  state 
from  depriving  any  person  of  life,  liberty,  or  property  with- 
out due  process  of  law.94 

The  provisions  of  the  New  York  constitution  that  no  per- 
son shall  be  deprived  of  property  without  due  process  of 
law,  nor  property  taken  for  public  use  without  just  compen- 
sation, have  no  application  to  the  exercise  of  the  taxing 
power.95 

The  statute  of  Maine  9S  does  not  conflict  with  the  state 
constitution,97  providing  that  no  person  shall  be  deprived 
of  his  property  or  privileges  but  by  judgment  of  his  peers, 
or  by  the  law  of  the  land.98 

Nor  does  this  statute  conflict  with  the  provision  of  the 
fourteenth  amendment  to  the  constitution  of  the  United 
States,  providing  that  "no  state  shall  make  or  enforce  any 

02  Section  13. 

93  state  v.  Hamlin  (1894)  86  Me.  507,  30  Atl.  76. 
s*  In  re  McPherson,  104  N.  Y.  30(5,  10  N.  E.  685;   State  v.  Hamlin, 
supra. 
95  People  v.  Mayor  of  Brooklyn,  4  N.  Y.  419. 
9  6  Appendix,  V. 
9t  Article  1,  §  6. 
9s  State  v.  Hamlin,  supra 

(53) 


§    24  NATURE    OF   TAX    AND    ITS    CONSTITUTIONALITY.       [Ch.    2 

law  which  shall  abridge  the  privileges  or  immunities  of  citi- 
zens of  the  United  States."  " 

In  Ohio,  however,  under  the  direct  inheritance  tax,100  it 
has  been  recently  held  that  the  act  was  invalid,  as  being  in 
contravention  of  that  part  of  the  United  States  constitu- 
tion 101  which  provides  that  no  state  shall  "den}T  to  any  per- 
son within  its  jurisdiction  the  equal  protection  of  the 
laws."  102 


§  24.     As  to  Being  Retroactive  and  Ex  Post  Facto. 

In  Maryland  an  interesting  question  103  arose  as  to  the 
constitutional  effect  of  a  statute  of  that  state  releasing  the 
rights  of  the  state  to  claims  for  the  tax  against  husbands, 
who,  under  a  previous  law,  had  been  made  liable  where  such 
claims  had  not  been  actually  paid.  It  was  contended  by 
the  state  that  the  act  was  retroactive  and  unconstitutional, 
as  against  the  state,  as  violating  the  rule  of  equality  be- 
tween those  husbands  who  had  actually  paid  the  tax  before 
the  repealing  law  was  passed,  and  those  who  had  refused, 
and  thus  obtained  its  benefits. 

But  the  court  said:  "If  the  legislature  is  satisfied  that  a 
given  tax  is  no  longer  necessary,  that  it  is  unjust,  that  a 
change  of  circumstances  requires  its  repeal,  that  public  pol- 
icy demands  that  the  repeal  shall  be  prompt,  should  give 
instant  relief,  and  should  therefore  extend  to  all  who  have 
not  yet  actually  paid,  the  legislature  has,  in  its  discretion 
the  constitutional  right  so  to  enact,  without  being  at  the 
same  time  compelled  to  embarrass  the  treasury  by  a  sweep- 
ing restriction  to  all  who  had  paid  the  tax  from  the  time  of 

»9  State  v.  Hamlin,  supra. 

ioo  See  Appendix,  Laws  Ohio  1894. 

loi  Article  14,  §  1. 

102  state  v.  Ferris,  supra,  pp.  47,  49. 

103  Montague  v.  State,  54  Md.  486. 
(54) 


Ch.   2]       NATURE   OF   TAX    AND    ITS    CONSTITUTIONALITY.  §    21 

its  imposition.  Under  some  circumstances  such  a  retro- 
spective exemption  might  be  highly  expedient,  and  under 
others  not.  The  question  is  of  policy,  and  not  of  law  for 
the  courts."  104 

The  legislature  may  release  property  which  has  been  as- 
sessed for  taxation.  The  power  over  the  subject  is  unlim- 
ited, and  can  be  exercised  in  any  way  and  at  any  time  dur- 
ing the  proceedings  for  taxation.105 

In  Pennsylvania  an  amendatory  statute  of  1850  (amend- 
ing Act  1826)  provided  that  the  estates  of  persons  domiciled 
there  who  died  before  the  passage  of  the  act  of  1850  ''shall 
be  so  construed  as  to  relate  to  all  persons  who  have  been 
at  the  time  of  their  decease  or  now  may  be  domiciled  within 
this  commonwealth,  as  well  as  to  estates."  It  was  held 
that  the  act  was  retroactive,  but  constitutional  as  to  estates 
within  the  state,  and  that  under  it  stocks  and  moneys  held 
abroad  were  liable  to  the  tax,  to  be  paid  out  of  the  assets 
in  the  hands  of  the  executors.106 

In  Short's  Case  107  the  court  said :  "The  argument  has  been 

104  Montague  v.  State,  54  Md.  48(3.  Many  retroactive  or  retrospec- 
tive exemptions  have  been  made  in  New  York,  particularly  as  regards 
adopted  children,  and  those  standing  in  the  so-called  relation  of  par- 
ent and  child.  Laws  1SS5,  c.  483,  §  1;  Laws  1887,  c.  713;  Laws  1889, 
c.  479.  Also,  under  the  act  of  1891,  c.  215;  Laws  1S92,  c.  169;  Laws 
1892,  c.  399,  §  1,  subd.  3;  Id.  §  2.  See  these  retroactive  clauses  dis- 
cussed in  chapter  6,  §  58,  subds.  c,  3f.  Regarding  bishops  and 
religious  corporations  see  chapter  3,  "Exemptions,"  §  35. 

105  people  v.  Commissioners  of  Taxes  &  Assessments.  142  N.  Y. 
348,  37  X.  E.  116;  Roman  Catholic  Church  of  the  Transfiguration  v. 
A'iles  (Sup.)  33  N.  Y.  Supp.  213,  S6  Hun,  221,  construing  the  retro- 
active clause  of  Laws  1892,  c.  169. 

loo  in  re  Short's  Estate  (1851)  16  Pa.  St.  63;  Carpenter  v.  Pennsyl- 
vania, 17  How.  456;  Com.  v.  Smith.  5  Pa.  St.  143.  See,  also,  In  re  Al- 
exander's Estate,  3  Pa.  Law  J.  Rep.  87;  In  re  Ewing,  1  Cromp.  & 
J.  151;  Orcutt's  Appeal,  97  Pa.  St.  1S4.  But  see  Pullen  v.  Com- 
missioners (1872)  66  N.  C.  361. 

107  Supra. 

(55) 


§    24  NATURE    OF    TAX    AND    ITS    CONSTITUTIONALITY.       [Ch.   2 

that  we  ought  not  to  give  the  act  a  retroactive  effect  unless 
we  are  forced  to  do  so  by  the  stringency  of  the  words.  The 
principle  is  a  sound  one  where  retroaction  would  work  an 
injustice,  *  *  *  but  certainly  no  injustice  is  done  by 
increasing  a  tax  to  meet  an  increase  of  the  public  burden." 

Short's  Estate  subsequently  came  before  the  supreme 
court  of  the  United  States.108  It  appeared  that  decedent 
was  a  citizen  of  the  state,  had  died  in  1849,  and  his  resident 
executor  claimed  that  certain  bonds,  not  within  the  state, 
and  legacies  to  foreigners,  were  not  taxable,  and  that  the 
act  of  1850  was  retroactive,  upon  the  ground  that  the  rights 
of  the  legatees  vested  at  decedent's  death.  It  was  also 
urged  that  the  law  was  ex  post  facto.  The  latter  conten- 
tion the  court  overruled,  with  the  observation  that  it  only 
applied  to  criminal  cases.  In  passing  upon  the  other  objec- 
tion the  court  said: 109  "Until  the  period  for  distribution  ar- 
rives, the  law  of  the  decedent's  domicile  attaches  to  the 
property,  and  all  other  jurisdictions  refer  to  the  place  of 
domicile  as  that  where  the  distribution  should  be  made. 
The  will  of  the  testator  is  proven  there,  and  his  executor  re- 
ceives his  authority  to  collect  the  property  by  the  recogni- 
tion of  the  legal  tribunals  of  that  place.  *  *  *  The 
rights  of  the  donee  are  subordinate  to  the  conditions,  formal- 
ities, and  administrative  control  prescribed  by  the  state  in 
the  interest  of  its  public  order,  and  are  only  irrevocably  es- 
tablished upon  its  abdication  of  this  control  at  the  period 
of  distribution.  If  the  state,  during  this  period  of  adminis- 
tration and  control  by  its  tribunals  and  their  appointees, 
thinks  fit  to  impose  a  tax  upon  the  property,  there  is  no  ob- 
stacle in  the  constitution  and  laws  of  the  United  States  to 
prevent  it.110  Thus,  there  is  nothing  to  prevent  the  state 
from  taxing  estates  undistributed,  even  if  the  act  is  passed 

108  sub  nom.  Carpenter  v.  Pennsylvania  (1854)  17  How.  456. 
loo  Page  462. 

no  Citing  Ennis  v.  Smith,  14  How.  400;  In  re  Ewing,  1  Cromp.  &  J. 
(56) 


Ch.   2]       NATURE   OF   TAX    AND    ITS    CONSTITUTIONALITY.  §    25 

subsequently  to  date  of  death.  This  is  the  English  pule.111 
In  a  recent  case  in  Pennsylvania,  however,  the  court 
seemed  inclined  to  doubt  whether,  if  the  collateral  act  of 
1887  (consolidating  the  law  of  that  state)  assumed  to  tax 
any  other  or  different  estates  than  those  provided  for  in 
previous  statutes,  it  would  be  constitutional;  but  the  objec- 
tion seems  only  to  have  referred  to  a  requirement  of  the 
constitution  that  the  title  of  the  act  should  clearly  indicate 
the  subject-matter  of  the  bill.112 

The  claim  of  the  state  for  taxes  is  not  suspended  until 
the  estate  of  a  deceased  person  is  administered,  or  bound 
to  share  with  that  of  creditors  in  the  distribution  of  the  pro- 
ceeds. The  state  may  enforce  it  to  the  exclusion  of  all 
other  creditors.113 

§  25.     Not  a  Tax  upon  Exports  or  Commerce. 

These  statutes  have  also  been  before  the  federal  supreme 
court,  upon  the  claim  that  a  statute  of  Louisiana  taxing 
foreign  legatees  violated  the  rights  of  aliens  under  treaty 
between  the  federal  government  and  foreign  powers,  and 
conflicted  with  the  constitution,  but  it  was  held  that  the 
power  of  the  state  to  impose  such  a  tax  upon  foreign  leg- 
atees was  similar  to  that  which  the  state  exercised  in  tax- 
ing its  own  citizens;  that  the  state,  in  allowing  aliens  to 
inherit,  conferred  a  privilege  which  it  could  tax,  or  withdraw 
totally;  and  that  aliens  were  not  entitled  to  exemption,  un- 

151;   Attorney  General  v.  Napier,  6  Exch.  217;   Lawrence  v.  Kitter- 
idge,  21  Conn.  577;  1  Barb.  Ch.  180. 

m  See  cases  supra,  and  Attorney  General  v.  Middleton,  3  Hurl.  & 
N.  125;   Cooley,  Tax'n  (2d  Ed.)  376;  chapter  1,  §  4,  note  29. 

112  Cooper's  Estate  (Appeal  of  Commonwealth)  127  Pa.  St.  441,  17 
Atl.  1094,  affirming  5  Pa.  Co.  Ct.  R.  271;  Bittinger's  Estate  (Appeal 
of  Commonwealth;  18S9)  129  Pa.  St.  338,  18  Atl.  132.  See  section  9, 
supra. 

us  Dunlap  v.  Gallatin  Co.,  15  111.  7;    Hil.  Tax'n,  §  66. 

(57) 


§    26  NATURE    OF   TAX    AND    ITS    CONSTITUTIONALITY.       [Ch.   2 

der  the  constitution,114  as  being  a  tax  upon  commerce  or 
exports.115 

§  26.     Conflicting  with  Treaties   and  Alien   Rights. 

The  Louisiana  statute  also  came  before  the  supreme  court 
in  1856,116  when  it  was  contended  that  it  conflicted  with 
the  treaty  of  France  made  in  1853,117  which  stipulated 
against  the  imposition  of  inheritance  taxes;  but,  as  the  de- 
cedent died  in  1848,  the  court  held  that  the  treaty  could  not 
divest  rights  accruing  before  it  went  into  effect,  and  it  was 
doubted,  under  the  express  terms  of  the  treaty  whether  the 
federal  government  could  control  the  succession  laws  of 
the  state,  in  the  absence  of  an  act  of  the  state  repealing  the 
law,  and  accepting  the  provisions  of  the  treaty.118 

But  it  has  since  been  held  by  the  supreme  court  that, 
where  the  state  law  conflicts  with  a  treaty  between  the  fed- 
eral government  and  a  foreign  power,  such  law  becomes  pro 
tanto  inoperative,  as  against  citizens  of  such  foreign  power,, 
and  the  treaty  being  the  supreme  law  of  the  land,  and  retro- 
active as  well  as  prospective,  the  fact  that  the  law  existed 
before  the  treaty  went  into  effect  would  make  no  differ- 
ence.119 

The  treaty  of  1853  between  France  and  the  United  States 
does  not  exempt  French  citizens  from  the  inheritance  tax,, 

114  Sections  8-10  of  article  1. 

us  Mager  v.  Grima  (1849)  8  How.  400,  affirming  12  Rob.  (La.)  584. 
See  Arnaud's  Heirs  v.  His  Executor,  3  La.  337;  Quessart's  Heirs  v. 
Canonge,  Id.  5G0,  and  Dallinger  v.  Eapello,  14  Fed.  33. 

iig  Prevost  v.  Greneaux,  19  How.  1,  affirming  12  La.  Ann.  577. 

ii7  See  In  re  Bondon,  N.  Y.  Law  J.  March  1,  1892. 

us  See,  also,  Frederickson  v.  Louisiana  (1859)  23  How.  445;  Suc- 
cession of  Schaffer,  13  La.  Ann.  113. 

us  Succession  of  Dufour,  10  La.  Ann.  391;   Succession  of  Amat,  18 
La.  Ann.  403.     Succession  of  Crusius,  19  La.  Ann.  369;   Hauenstein 
v.  Lynhain,  100  U.  S.  4S3;   Cooley,  Tax'n  (2d  Ed.)  100. 
(58) 


Ch.   2]       NATURE   OF   TAX    AND    ITS    CONSTITUTIONALITY.  §    27 

as  imposed  under  the  laws  of  New  York.120  The  treaty  pro- 
vides that:  "In  all  states  of  the  Union  whose  existing  laws 
permit  it,  so  long  as,  and  to  the  same  extent  as,  the  said 
laws  shall  remain  in  force,  Frenchmen  shall  enjoy  the 
right  of  possessing  personal  and  real  property  by  the  same 
title  and  in  the  same  manner  as  the  citizens  of  the  United 
States.  They  shall  be  free  to  dispose  of  it  as  they  may 
please,  either  gratuitously,  or  for  value  received,  by  dona 
tion,  testament,  or  otherwise,  just  as  those  citizens  them- 
selves; and  in  no  case  shall  they  be  subject  to  taxes  on 
transfer,  inheritance,  or  any  others,  different  from  those 
paid  by  the  latter,  or  to  taxes  which  shall  not  be  equally  im- 
posed." 

§  27.     Government  Bonds  and  State  Securities. 

Perhaps  one  of  the  best  illustrations  of  the  exact  nature 
of  this  tax,  as  being  one  that  is  imposed  upon  the  privilege 
of  succeeding  to  property,  and  not  upon  the  property  per  se, 
which  is  merely  used  as  a  medium  for  ascertaining  the  value 
so  as  to  fix  the  amount  of  the  tax,121  is  that  of  government 
bonds  and  state  stocks,  or  securities  declared  by  general 
laws  to  be  exempt  from  all  taxation.  These  securities  have 
been,  nevertheless,  subjected  to  the  collateral  inheritance 
tax.122 

120  in  re  Bondon,  N.  Y.  Law  J.  March  1,  1892. 

121  Wallace  v.  Myers,  3S  Fed.  184.  In  re  Swift,  137  N.  Y.  77,  32 
N.  E.  109G.  "In  view  of  the  federal  decisions  fixing  the  status  of 
this  form  of  taxation,  it  seems  absurd  to  regard '  succession  charges 
as  property  taxes.  *  *  *  It  is  upon  the  idea  that  the  tax  is  the 
price  paid  for  the  privilege  of  succession  that  its  constitutionality  has 
been  upheld  when  applied  to  the  transmission  of  United  States  secu- 
rities."   32  Am.  Law  Reg.  (N.  S.)  366. 

122  in  re  Carver's  Estate  (1893)  4  Misc.  Rep.  592,  25  N.  Y.  Supp.  991; 
In  re  Tuigg's  Estate  (Suit.)  15  N.  Y.  Supp.  548;  In  re  Ludlow's  Estate 
(Suit.)  25  N.  Y.  Supp.  989.  The  statute  of  West  Virginia  (Laws  1SS7, 
p.  Ill,  c.  31)  expressly  taxes  all  public  securities  for  money  of  every 

(59) 


§    27  NATURE    OF   TAX    AND    ITS    CONSTITUTIONALITY.        [Ch.   2 

One  of  the  earliest  cases  upon  this  subject  is  that  of 
Strode  v.  Com.,123  where  the  state  sought  to  collect  a  col- 
lateral tax  upon  an  estate,  a  part  of  which  was  composed 
of  government  bonds  devised  to  collaterals;  and  the  right 
of  the  state  to  collect  the  tax  upon  the  value  of  these  bonds 
was  upheld  upon  the  familiar  grounds  stated  above,  and 
within  the  ruling  of  the  federal  courts.124  Chapman,  P.  J., 
said: 125  "But  the  view  entertained  by  the  court  is  that  no 
act  of  congress  impinges  upon  the  collateral  inheritance 
law.  This  law  contemplates  the  imposition  of  no  tax  such 
as  congress  intended  to  prohibit.  It  is  called  a  'tax'  or 
'duty,'  but  has  little  or  no  analogy  to  a  tax,  in  the  usual 
acceptation  of  the  term.  It  cannot  be  regarded  as  a  pen- 
alty, exactly,126  but  it  approximates  that  as  nearly  as  it  does 
an  ordinary  tax."  Woodward,  C.  J.,127  in  giving  the  opin- 
ion of  the  supreme  court,  said:  "Neither  the  prohibitory 
clause  of  the  act  of  congress  of  1862,  nor  any  of  the  prin- 
ciples of  decision  against  state  authority  to  tax  that  which 
federal  authority  has  exempted  from  taxation,  have  any 

kind.  Also  that  of  Maryland,  Appendix,  VIII.  The  United  States  su- 
preme court  has  frequently  held  that  a  state  statute  imposing  a  tax 
upon  bank  capital  invested  in  United  States  bonds  is  unconstitutional, 
but  it  seems  these  were  cases  ofva  property  tax  purely,  and  have  no 
application  to  a  tax  of  this  character.  People  v.  Tax  Com'rs  of  City 
and  County  of  New  York,  2  Black,  620;  Bank  Tax  Case,  2  Wall.  200; 
Banks  of  New  York  v.  Mayor,  7  Wall.  16. 

123  52  Pa.  St.  181;  Clymer  v.  Com.,  Id.  189.  See,  also,  In  re  How- 
ard, 5  Dem.  Sur.  483;  Wallace  v.  Myers,  supra;  In  re  Van  Kleeck, 
sub  nom.  Sherrill  v.  Christ  Church,  121  N.  Y.  701,  25  N.  E.  50.  They 
have  also  been  held  taxable  under  the  New  York  act  of  1892,  c.  399. 
In  re  Carver's  Estate,  supra;  In  re  Ludlow's  Estate  (Surr.)  25  N. 
Y.  Supp.  9S9. 

124  Citing  McCulloch  v.  Maryland,  4  Wheat.  316. 

125  Page  186. 

126  it  is  not  a  penalty  or  forfeiture.  Arnaud's  Heirs  v.  His  Execu- 
ltor,  3  La.  337;    In  re  Vanderbilt's  Estate  (Surr.)  10  N.  Y.  Supp.  239. 

127  52  Pa.  St.  189,  supra. 
(60) 


Ch.   2]       NATURE    OF   TAX    AND    ITS    CONSTITUTIONALITY.  §    27 

application  here.  The  federal  government  has  not  prohib- 
ited the  state  from  prescribing  rules  of  inheritance  and  suc- 
cession to  estates  of  decedents,  and  it  would  be  a  grievous 
mistake  of  legislative  and  judicial  authority  to  apply  it  with 
such  effect.128 

Upon  the  same  principle,  the  tax  was  held  rightfully  im- 
posed upon  a  collateral  who  was  a  devisee  of  certificates 
issued  by  the  state  of  Pennsylvania  for  a  state  loan,  which 
were  declared  by  the  law  under  which  they  were  issued  to 
be  exempt  from  state,  municipal,  or  local  taxation; 129  and 
in  a  recent  case  in  New  York  the  law  of  that  state  was  up- 
held by  the  United  States  circuit  court,  where  the  state 
sought  to  assess  taxes  upon  government  bonds  passing  to 
collaterals  under  a  decedent's  will.130 

In  the  Wallace  Case,  supra,  it  was  contended  that  the 
fact  that  the  tax  was  assessed  upon  the  value  of  the  bonds 
showed  that  it  was  a  property  tax,  and  that  it  was  therefore 
void.131  The  circuit  court  said:  "The  circumstance  that 
incidentally,  under  such  a  statute,  such  bonds  may  have  to 
be  valued,  in  order  to  ascertain  the  amount  of  the  tax,  does 
not  affect  its  essential  nature,  as  one  upon  the  privilege,  and 
not  upon  the  bonds.  *  *  *  Such  a  tax  is  no  more  upon 
the  bonds  than  an  income  tax  is  one  upon  the  property  out 
of  which  the  income  is  derived,  or  an  excise  tax  is  one  upon 
the  articles  manufactured  or  sold.  The  bonds  are  the  sub- 
ject of  the  appraisal,  but  the  privilege  is  the  subject  of  the 
tax."132 

128  See,  also,  In  re  Tuigg's  Estate,  supra. 

129  Coin.  v.  Herman  (1SS5)  16  Wkly.  Notes  Cas.  210. 

130  Wallace  v.  Myers  (1889)  38  Fed.  1S4,  citing  Mager  v.  Grima,  8 
How.  490;  Carpenter  v.  Pennsylvania,  17  How.  456.  See  In  re  How- 
ard, 5  Dem.  Sur.  483;  In  re  Tuigg's  Estate  (Suit.)  15  N.  Y.  Supp.  548; 
Sherrill  v.  Christ  Church,  121  N.  Y.  701,  25  N.  E.  50. 

131  See  Pullen  v.  Coin'rs  (1S72)  66  N.  C.  363,  where  a  like  objec- 
tion was  overruled. 

132  Citing  Society  for  Savings  v.  Coite,  6  Wall.  594;    Hamilton  Co. 

(61) 


§    28  NATURE   OF   TAX    AND    ITS    CONSTITUTIONALITY.       [Cll.   2 

§  28.     United  States  and  Municipalities— Legacies 
to — Taxable. 

So,  under  the  New  York  statutes,  it  is  held  that,  the  tax 
being  upon  the  privilege  of  succession,  the  state  has  power 
to  tax  a  legacy  to  the  United  States  government  with  the 
same  force  that  it  taxes  a  legacy  to  a  natural  person,  and 
that  it  is  not  a  taxation  of  the  property  of  the  federal  gov- 
ernment. Bartlett,  J.,  said:  "This  tax,  in  effect,  limits  the 
power  of  testamentary  disposition,  and  legatees  and  dev- 
isees take  their  bequests  and  devises  subject  to  this  tax 
imposed  upon  the  succession  to  property.  This  view  elim- 
inates from  the  case  the  point  urged  by  the  appellant,  that 
to  collect  this  tax  would  be  in  violation  of  the  well-estab- 
lished rule  that  the  state  cannot  tax  the  property  of  the 
United  States.  Assuming  this  legacy  vested  in  the  United 
States  at  the  moment  of  testator's  death,  yet,  in  contempla- 
tion of  law,  the  tax  was  fixed  on  the  succession  at  the  same 
instant  of  time.  This  is  not  a  tax  imposed  by  the  state 
on  the  property  of  the  United  States.  The  property  that 
vests  in  the  United  States  under  this  will  is  the  net  amount 
of  its  legacy  after  the  succession  tax  is  paid."  133  "In  the 
view  we  take  of  this  case,  the  legacy  to  the  United  States 
is  subject  to  this  tax,  whether  we  consider  the  assessment 

v.  Massachusetts,  Id.  632;  People  v.  Home  Ins.  Co.,  92  N.  Y.  328, 
affirmed  119  U.  S.  129,  8  Sup.  Ct.  1385;  In  re  Swift,  137  N.  Y. 
77,  32  N.  E.  1096.  See,  also,  People  v.  Home  Ins.  Co.,  92  N.  Y.  345, 
affirmed  134  U.  S.  594,  10  Sup.  Ct.  593;  People  v.  Wemple  (N.  Y. 
App.)  33  N.  E.  720.  These  cases  hold  that  the  fact  that  a  corporation 
paying  a  franchise  tax  has  invested  some  of  its  deposits  in  federal 
securities,  exempted  from  taxation,  does  not  exempt  the  society 
from  the  franchise  tax  as  to  the  amount  so  invested. 

133  in  re  Merriam's  Estate  (1894)  141  N.  Y.  484,  36  N.  E.  505;    Id. 
<Sup.)  26  N.  Y.  Supp.  191;   In  re  Cullum's  Estate  (1893)  5  Misc.  Rep. 
173,  25  N.  Y.  Supp.  700;    Id.,  76  Hun,  610,  27  N.  Y.  Supp.  1105,  af- 
firmed in  court  of  appeals,  145  N.  Y.  593,  40  N.  E.  163,  mem. 
(62) 


Ch.  2]       NATURE   OF   TAX    AND    ITS    CONSTITUTIONALITY.  §    28 

as  made  under  the  language  of  the  law  of  1892,  or  of  the 
various  statutes  it  amends  and  repeals.  Whether  the  trans- 
fer is  'to  persons  or  corporations/  in  the  language  of  the 
law  of  1892,  or  'to  any  person  or  persons,  or  to  a  body  poli- 
tic or  corporate,'  in  the  words  of  the  earlier  statutes,  we  are 
of  the  opinion  the  language  includes  the  government  of  the 
United  States.  For  the  purpose  of  receiving  legacies,  and 
for  many  other  purposes,  the  United  States  is  to  be  regard 
ed  as  a  body  politic  and  corporate."  134  So,  under  these  de- 
cisions, it  has  been  recently  held  that  a  legacy  to  the  mayor, 
aldermen,  and  commonalty  of  the  city  of  New  York,  for  the 
purpose  of  erecting  an  ornamental  fountain,  is  liable  to  tax- 
ation under  the  express  language  of  the  act  of  1891,*  Sur- 
rogate Fitzgerald  holding  as  follows:!  "It  is  not  questioned 
that  the  legatee  is  a  'body  politic  or  corporate.'  It  is,  there- 
fore, taxable  by  the  express  verbiage  of  the  law,  unless  it 
can  be  shown  to  be  one  of  the  'societies,  corporations,  or 
institutions  now  exempted  by  law  from  taxation.'  There 
is  no  provision  of  the  constitution  prohibiting  the  legisla- 
ture from  imposing  a  tax  upon  this  municipality,  and,  so 
far  as  I  have  been  able  to  learn,  there  is  no  statute  which 
exempts  it  from  general  taxation.  The  privilege  conferred  t 
must  be  obviously  limited  to  corporations  organized  under 
the  act  of  which  it  is  an  amendment,  and  cannot,  by  the 
most  liberal  construction,  be  deemed  to  have  been  intended 
to  extend  the  exemption  to  municipal  corporations.  I  had 
occasion,  in  Re  Cullum's  Estate,**  to  refer  to  the  advantage, 
in  construing  the  various  acts  taxing  inheritances,  of  regard- 
ing them  as  limitations  upon  the  power  of  testamentary  dis- 

134  in  re  Merriam's  Estate  (1S94)  141  N.  Y.  479,  36  N.  E.  505,  cit- 
ing U.  S.  v.  Maurice,  2  Brock.  96,  109,  Fed.  Cas.  No.  15,747. 
*  Laws  1891,  c.  215. 

•j-  In  re  Hamilton's  Estate,  13  N.  Y.  Law  J.  13S4. 
t  Laws  1891,  c.  215;   Appendix,  I. 
**  5  Misc.  Rep.  173,  25  N.  Y.  Supp.  700. 

(63) 


§    29  NATURE    OF    TAX    AND    ITS    CONSTITUTIONALITY.       [Cll.   2 

position;  and  my  views  then  expressed  have  since  received 
the  approval  of  the  court  of  appeals.ft  *  *  *  I  fully 
concur  in  the  views  expressed  in  the  able  brief  of  the  counsel 
to  the  corporation  as  to  the  impropriety  of  taxing  bequests 
of  this  character,  but  relief  must  be  sought  from  the  law- 
making power." 

§  29.     Legatee's  or  Owner's  Domicile  as  to  Personal 
Property  and  Its  Situs. 

Under  this,  one  of  the  most  important  branches  of  the 
collateral  tax  law,  questions  that  are  beset  with  difficulty 
constantly  arise.  As  the  majority  of  these  questions  do 
not,  however,  strictly  involve  constitutional  or  jurisdictional 
points,  their  discussion  and  treatment,  with  one  or  two  ex- 
ceptions, has  been  deemed  more  appropriate  under  the  gen- 
eral topic  of  "Domicile  and  Situs,"  discussed  in  another 
chapter; 135  and  it  remains  here  merely  to  consider  the  prop- 
ositions of  law  which  have  been  determined  with  respect  to 
such  questions  of  domicile  and  situs  arising  under  the  vari- 
ous constitutional  provisions,  federal  and  state. 

These  adjudications  seem  to  have  resolved  themselves 
into  several  propositions: 

(1)  Under  the  maxim  "Mobilia  sequuntur  personam,"  13<J 
it  seems  to  be  generally  conceded  that  the  state  of  the  de- 
cedent's domicile  has  the  power  of  imposing  a  succession, 
legacy,  or  inheritance  tax  upon  the  personal  property  of 
such  decedent,  whether  situate  there,  or  in  a  foreign  coun- 
try (and  perhaps  upon  the  real  estate  in  a  foreign  state), 
and  whether  bequeathed  to  resident  or  alien  legatees.137 

ft  Citing  In  re  Merriam's  Estate,  supra. 

135  See  chapter  4,  §  47. 

!3  6  Upon  this  maxim,  see  5  Political  Science  Quarterly  (Dec,  1S00) 
646;  note  to  Commonwealth's  Appeal  (Small's  Estate)  32  Am.  Law 
Reg.  365,  151  Pa.  St.  1,  and  25  Atl.  23. 

is?  chapter  4,  §  47;  Tyson  v.  State,  28  Md.  577;  Mager  v.  Grima,  8 
(64) 


Ch.   2]       NATURE   OF   TAX    AND    ITS    CONSTITUTIONALITY.  §    20 

And  a  state  can  rightfully  tax  as  the  property  of  a  resi- 
dent the  registered  public  debt  of  another  state,  although 
the  debtor  state  may  have  exempted  it  from  taxation,  or 
actually  taxed  it.138 

There  can  be  no  doubt  that  the  legislature  has  the  power 
to  impose  the  tax,  not  only  where  it  affects  citizens  of  the 
state,  but  also  where  nonresidents  or  aliens  claim  by  inher- 
itance or  by  will  property  located  there.  Every  state  in  the 
Union,  in  the  absence  of  a  constitutional  prohibition,  has 
the  authority  to  regulate  by  law  the  devolution  and  distri- 
bution of  an  intestate's  property  situated  within  the  juris- 
diction of  that  state,  and  personal  property  situated  else- 
where, but  owned  by  a  resident,  and  to  prescribe  who  shall 
take,  and  who  shall  not  be  capable  of  taking  it.139 

(2)  It  has  been  held,  under  the  law  of  Maryland,  that  tan- 
gible personal  property,  i.  e.  bonds  and  securities,  that  are 
situate  in  the  taxing  state,  are  liable  to  the  succession 
and  legacy  tax,  although  the  decedent  was  not  domiciled 
there,  but  died  in  another  state,  of  which  he  was  a  citizen 
and  where  his  will  was  probated,  and  in  which  his  collateral 
legatees  resided,  and  left  neither  debts  nor  collateral  lega- 
tees in  such  taxing  state.140 

The  same  power  exists  in  parliament,  but  the  intention 

How.  490;  Eyre  v.  Jacob,  14  Grat.  422;  State  v.  Dalrymple,  70  Md. 
294,  17  Atl.  82;  In  re  Short's  Estate,  16  Pa.  St.  63;  Com.  v.  Smith, 
5  Pa.  St.  143;  In  re  Alexander's  Estate,  3  Pa.  Law  J.  87;  U.  S.  v. 
Hunnewell,  13  Fed.  617;  In  re  Ewing's  Estate,  1  Cromp.  &  J.  151- 
15S;  Bittinger's  Estate  (Appeal  of  Commonwealth)  129  Pa.  St.  338, 
18  Atl.  132;   In  re  Swift,  137  N.  Y.  77,  32  N.  E.  1096. 

138  Bonaparte  v.  Tax  Court,  104  U.  S,  595. 

139  State  v.  Dalrymple,  and  cases,  supra.  See,  also,  Common- 
wealth's Appeal  (Small's  Estate)  151  Pa.  St.  1,  25  Atl.  23,  and  note 
to  same  case,  32  Am.  Law  Reg.  365. 

140  State  v.  Dalrymple,  supra.  Such  would  also  now  seem  to  be 
the  law  of  New  York  as  to  both  foreign  testates  and  intestates, 
where  there  is  property  within  the  state.    In  re  Will  of  Enston,  113 

LAW  inher. — 5  (65) 


§    29  NATURE   OF   TAX    AND    ITS    CONSTITUTIONALITY.       [Ch.   2 

to  tax  the  personal  property  of  such  nonresidents  must  be 
clearly  expressed.141 

Under  this  doctrine  they  are  exempted  under  the  legacy 
act,  and,  to  some  extent,  taxed  under  the  succession  act. 

Where  a  nonresident  is  owner  of  tangible  property  with- 
in the  state,  and  the  state  imposes  a  tax  upon  it,  the  tax 
is  not  a  charge  against  the  owner  personally,  but  must  be 
enforced  against  the  property  itself.     The  state  has  no  ju- 

N.  Y.  183,  21  N.  E.  87;  In  re  Vinot's  Estate  (Surr.)  7  N.  Y.  Supp. 
517;  In  re  Clark's  Estate  (Surr.)  9  N.  Y.  Supp.  444;  In  re  Rornaiue, 
127  N.  Y.  80,  27  N.  E.  759.  This  case  has  attracted  general  atten- 
tion. See  58  Hun,  109,  11  N.  Y.  Supp.  313;  43  Alb.  Law  J.  513;  48 
Leg.  Int.  (Phila.)  265.  With  regard  to  the  liability  of  nonresident  de- 
cedents to  pay  tax  upon  personal  property,  i.  e.,  stocks  and  bonds  of 
foreign  corporations,  in  New  York,  the  ruling  in  Re  Rornaine,  supra, 
has  been  modified  and  distinguished,  under  the  act  of  1887  (chapter 
713),  by  a  recent  decision  in  the  court  of  appeals  in  Re  James,  144 
N.  Y.  6,  38  N.  E.  961,  holding  that  such  stocks  were  not  property  in 
a  legal  sense  within  the  state,  and  that  the  legal  situs  of  that  spe- 
cies of  personal  property  is  where  the  corporation  exists,  or  where 
the  shareholder  has  his  domicile.  Gray,  J.,  said,  "The  reading  of  the 
act  does  not  authorize  us  to<  construe  it  as  an  effort  to  tax  that  over 
which  there  was  no  jurisdiction,  and  it  would  be  highly  improper  to 
impute  to  the  legislature  such  an  intention."  The  question  as  to 
whether  such  property  is  taxable  under  the  act  of  1892,  c.  399,  has 
not  been  determined.  The  language  of  this  act  is  more  compre- 
hensive in  its  scope,  and  would  seem  to  overcome  the  objection  taken 
in  Re  James,  supra.  See  Laws  1892,  c.  399,  §  22.  The  court  adopt- 
ed the  rule  of  general  tax  laws  prevailing  in  New  York  on  this  sub- 
ject, but  as  we  have  shown  elsewhere  (chapter  4,  §  47,  subd.  b)  this 
rule  of  domicile  is  a  mere  fiction  of  law,— has  no  application  to  a 
tax  like  the  inheritance  tax.  See  In  re  James,  supra;  In  re  Phipps, 
143  N.  Y.  641,  37  N.  E.  823,  affirming  77  Hun,  325,  2S  N.  Y.  Supp. 
330.  Yet,  in  Re  Swift,  137  N.  Y.  77,  32  N.  E.  1090,  the  same  court 
held  that  the  question  of  taxation  is  one  of  fact,  and  cannot  turn  on 
theories  or  fictions. 

141  Per  Cranworth,  Lord  Chancellor;   Wallace  v.  Attorney  General, 
1  Ch.  App.  1.    See  chapter  4,  §  47,  subd.  a. 
(66) 


Ch.   2]       NATURE    OF  TAX    AND    ITS    CONSTITUTIONALITY.  §    29 

risdiction  to  assess  such  a  tax  against  the  owner  person- 
ally.142 

(3)  That  as  to  real  estate  situate  beyond  the  jurisdiction 
of  the  state,  where  the  owner  was  domiciled  at  the  time  of 
his  death,  it  is  beyond  the  constitutional  power  of  such  state 
to  tax  the  same  by  any  direct  tax.143 

Accordingly,  it  has  been  held  that  the  statute  of  Pennsyl- 
vania, passed  in  1887,144  which  attempted  to  impose  a  tax, 
and  to  make  it  a  lien  upon  real  estate  situate  in  the  state 
of  Maryland,  was,  so  far  as  the  real  estate  was  concerned, 
a  direct  tax  thereon,  and  beyond  the  jurisdiction  of  the 
state,  and  the  statute  was  held,  pro  tanto,  unconstitution- 
al.145 The  court  conceded,  however,  that  the  state  might 
impose  a  succession  tax  upon  such  foreign  real  estate,  where 
it  belonged  to  a  citizen,  but  not  a  direct  tax. 

(4)  But  in  Pennsylvania,  where  real  estate  belonging  to 
the  citizen  of  the  taxing  state,  and  situate  in  a  foreign  coun- 
try or  state,  and  thus  beyond  the  jurisdiction  of  the  owner's 
domicile,  be  directed  by  will  to  be  converted  into  personalty, 
the  tax  may  be  imposed,  as  there  is  then  an  equitable  con- 
version, and  the  tax  is  in  reality  only  imposed  upon  the  pro- 
ceeds of  the  real  estate.146 

142  Cooley,  Tax'n  (2d  Ed.)  21,  citing  People  v.  Supervisors  of  Che- 
nango Co.,  11  N.  Y.  563.    See  Hilton  v.  Fonda,  86  N.  Y.  339. 

143  Appeal  of  Commonwealth  (Bittinger's  Estate)  supra,  distin- 
guishing Com.  v.  Smith,  5  Pa.  St.  142.  See,  also,  Kintzing  v.  Hutch- 
inson, 34  Leg.  Int.  365,  Fed.  Cas.  No.  7,834,  and  cases  cited  supra 
(section  15). 

144  Laws  Pa.  18S7,  p.  79,  Appendix,  III. 

145  Appeal  of  Commonwealth  (Bittinger's  Estate)  supra. 

146  Miller  v.  Com.  (1886)  111  Pa.  St.  321,  2  Atl.  492;  In  re  Wil- 
liamson's Estate  (1893)  153  Pa.  St.  508,  26  Atl.  246,  Mitchell,  J.,  dis- 
senting; In  re  Hale's  Estate,  161  Pa.  St.  181,  28  Atl.  1071;  In  re 
Howard,  5  Dem.  Sur.  483,  and  cases  cited  chapter  4,  where  the  sub- 
ject of  equitable  conversion  is  considered.  See,  also,  supra,  section  15. 
Contra,  In  re  Swift,  137  N.  Y.  77,  32  N.  E.  1096. 

(G7) 


§    30  NATURE    OF   TAX    AND   ITS    CONSTITUTIONALITY.       [Ch.    2 


§  30.     Exemptions — When  Constitutional. 

In  the  absence  of  constitutional  prohibitions,  reasonable 
and  fair  exemptions  under  these  statutes  may  be  and  are 
made,  both  as  to  persons  in  the  direct  or  collateral  line,  and 
as  to  the  value  of  the  property  passing,  sought  to  be  taxed. 

The  provision  of  the  federal  constitution,147  that  no  state 
shall  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  its  laws,148  was  not  intended  to  prevent  a 
state  from  adjusting  its  system  of  taxation  in  all  proper  and 
reasonable  ways. 

It  may,  if  it  choose,  exempt  certain  classes  of  property 
from  any  taxation  at  all,  such  as  churches,  libraries,  and  the 
property  of  charitable  institutions.  It  may  impose  differ- 
ent specific  taxes  upon  different  trades  and  professions,  and 
may  vary  the  rates  of  excise  upon  different  products.  It 
may  tax  real  and  personal  estate  in  a  different  manner.  It 
may  tax  visible  property  only,  and  not  tax  securities  for 
payment  of  money.  It  may  allow  deductions  for  indebted- 
ness, or  not  allow  them.149 

So  it  has  been  held  in  New  York  that  the  legislature  is 
not  controlled  as  to  the  extent  of  taxation  of  property  with- 
in the  state,  and,  in  imposing  a  special  tax  upon  all  persons 
within  a  certain  class,  there  is  no  violation  of  fundamental 

147  14th  amendment. 

148  Yet.  in  State  v.  Ferris  (April,  1S95)  9  Ohio  Cir.  Ct.  R.  298. 
300,  affirmed  as  State  ex  rel.  v.  Ferris,  23  Wkly.  Law  Bui.  (Ohio) 
July  1,  1895,  349,  352  (opinion  will  be  published  in  N.  E.  Rep.  as 
soon  as  handed  down),  the  circuit  court  of  Ohio  declared  the 
direct  inheritance  tax  of  that  state  invalid,  as  violating  the  clause 
of  the  14th  amendment  to  the  United  States  constitution,  providing 
that  no  state  "shall  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  law."  The  cases  in  the  United  States  su- 
preme court  referred  to  in  the  text  show  that  this  provision  has 
no  relation  to  these  laws.    Supra,  section  12. 

149  Bell's  Gap  R.  Co.  v.  Pennsylvania,  134  U.  S.  237,  10  Sup.  Ct. 
533;   In  re  Sherwell's  Estate,  125  N.  Y.  379,  26  N.  E.  404. 

(68) 


Ch.   2]       NATURE   OF   TAX    AND    ITS    CONSTITUTIONALITY.  §    30 

principles.  Where  the  tax  is  made  to  apply  to  every  estate 
which  is  devised  or  bequeathed  to,  or  inherited  by,  the  per- 
sons specified  in  the  law,  it  is  equal,  and  therefore  free  from 
objections  on  legal  grounds.150 

So  an  excise  upon  the  transmitting  of  property  by  will 
or  descent  is  not  unequal,  and  so  unreasonable,  by  reason 
either  of  an  exemption  of  kindred  in  the  direct  line,  or  of  a 
higher  rate  as  to  collaterals  and  strangers.  It  is  not  so 
clearly  unreasonable,  by  reason  of  an  exemption  of  estates 
under  $10,000,  as  to  render  it  unconstitutional.151 

And  in  a  recent  case  in  Maine,  under  the  inheritance  tax 
law  of  that  state,152  the  court  held  that:  "It  is  entirely  with- 
in the  province  of  the  legislature  to  determine  who  shall  and 
who  shall  not  take  the  estate,  and  the  proportion  in  which 
they  may  take,  and  whether  severally  or  as  joint  tenants,  per 
capita  or  per  stirpes.  In  the  absence  of  constitutional  pro- 
hibition, the  legislature  is  supreme,  and  may  dispose  of  an 
intestate's  estate,  after  payment  of  his  debts,  to  any  class 
or  classes  of  his  kindred,  to  the  exclusion  of  any  class  or 
classes.  It  may  limit  heirship  to  lineal  descendants,  to  the 
absolute  exclusion  of  all  collaterals.  If  it  permits,  as  our 
laws  now  do,  collateral  kindred  to  inherit,  no  reason  is  per- 
ceived why  the  state  is  debarred  from  exacting  an  excise  or 
duty  from  such  collateral  for  such  privilege  allowed  by  the 
state.  It  is  necessary  to  make  such  excise  uniform  as  to 
the  entire  class  of  collaterals.  It  must  not  tax  one  and 
exempt  another  in  the  same  class.  But  it  is  not  a  violation 
of  this  principle  to  require  an  excise  from  all  collaterals  and 
strangers,  and  exempt  from  the  excise  classes  nearer  in 
blood  to  the  decedent."  Statutes  have  been  passed,  how- 
ever, creating  exemptions,  which  have  been  declared  void, 
as  violating  constitutional  provisions. 

i5o  in  re  Sherwell's  Estate,  125  N.  Y.  379,  26  N.  E.  464. 
lei  Minot  v.  Winthrop  (1894)  162  Mass.  113.  3S  N.  E.  512. 
152  state  v.  Hamlin  (1894)  86  Me.  502,  30  Atl.  76. 

(69) 


§    30  NATURE   OF   TAX    AND    ITS    CONSTITUTIONALITY.        [Ch.   2 

In  Curry  v.  Spencer,153  an  inheritance  tax  law  was  held 
unconstitutional,  as  violating  the  provision  limiting  the 
power  to  tax  "proportional  and  reasonable  assessments, 
rates  and  taxes  upon  all  the  inhabitants  and  residents  with- 
in the  said  state,  and  upon  the  estates  within  the  same," 
and  as  violating  the  bill  of  rights,  requiring  every  inhabit- 
ant to  contribute  not  more  of  his  proportional  share  of  the 
common  burden.  The  court  said :  "We  therefore  go  no  fur- 
ther than  to  say  that,  if  the  legislature  deems  it  expedient 
to  defray  the  expenses  of  probate  courts  by  a  tax  upon  re- 
cipients of  estates  therein  adjudicated,  such  tax  must  be 
proportional,  and  constitute  only  the  just  share  of  those 
upon  whom  it  is  imposed ;  that  it  cannot  lawfully  make  dis- 
criminations, and  cast  the  burden  upon  one  class  of  bene- 
ficiaries, and  exempt  all  other  classes  from  its  operation; 
and  that  it  cannot,  therefore,  for  purposes  of  taxation,  ex- 
empt legacies  and  successions  to  husband,  wife,  children, 
and  grandchildren,  and  include  only  those  by  the  collaterals 
and  others  than  those  specified."  In  Ohio  the  direct  inher- 
itance tax  act 154  has  recently  been  declared  unconstitution- 
al, as  violating  the  rule  of  uniformity  and  equality,  in  that 
the  exemptions  under  the  act  were  restricted  to  certain 
classes  and  amounts,  and  did  not  apply  to  all  persons.155 

And  in  Minnesota,156  a  statute  requiring,  as  a  condition 
precedent  to  probate  proceedings  for  the  settlement  of  es- 
tates, the  payment  to  the  county  treasurer  of  specified  sums, 
arbitrarily  prescribed  with  reference  to  the  value  of  the  es- 
state,  was  held  unconstitutional,  being  contrary  to  clauses 
requiring  equality  of  taxation,  and  the  dispensation  of  jus- 

153  1882,  61  N.  H.  624. 

is*  Appendix,  Act  1894  (91  Ohio  Laws,  166). 
155  state  v.  Ferris  (April,  1895)  supra,  p.  68. 

ise  state  v.  Gorman  (1889)  40  Minn.  232,  41  N.  W.  948.    The  con- 
stitution of  this  state  now  allows  such  a  tax.    See  section  11,  supra. 
(70) 


Ch.    2]       NATURE    OF    TAX    AND    ITS    CONSTITUTIONALITY.  §    31 

tice  freely  and  without  purchase.  The  court  said: 1BT  "It  is 
thus  apparent  that  these  exactions  are  taxes,  in  the  general 
and  in  the  precise  meaning  of  that  word,  and,  if  the  constitu- 
tional rule  of  approximate  equality  has  been  disregarded,  the 
law  cannot  stand.  It  seems  hardly  necessary  to  refer  particu- 
larly to  the  schedule  of  values  and  of  amounts  required  to 
be  paid,  to  show  that  the  law  wholly  fails,  in  apportioning 
the  burden  imposed,  to  regard  the  constitutional  rule  of 
equality,  measured  with  reference  to  the  value  of  the  prop- 
erty taxed.  In  the  first  place,  estates  not  exceeding  f  2,000 
in  value  are  wholly  exempt  from  any  contribution.  If  es- 
tates are  taxable  in  this  manner  at  all,  such  an  exemption 
is  contrary  to  the  requirements  of  the  constitution." 

This  ruling  is  now  probably  overcome  by  the  recent 
amendment  to  the  constitution  of  that  state,  providing  for 
an  inheritance  tax.158 

Under  the  constitution  of  Pennsylvania  to  exempt  an  in- 
stitution from  taxation  it  is  an  essential  feature  that  it  be 
a  public  charity,  free  from  any  element  of  private  or  corpo- 
rate gain.  When  it  is  free  from  the  latter  element,  and  is 
an  institution  devoted  to  charity  by  its  act  of  incorporation, 
its  character  as  such  charity  is  not  destroyed,  if  to  some  ex- 
tent it  receive  a  revenue  from  the  recipients  of  its  bounty.159 

§  31.     General  Questions  as  to  Jurisdiction. 

Surrogates'  courts  are  constitutionally  empowered  to  de- 
termine the  tax,  as  it  is  simply  an  incident  in  the  settlement 
of  the  estate  of  deceased  persons.160     And  the  power  to  im- 

157  40  Minn.  235,  41  N.  W.  949. 

158  Supra,  section  11. 

159  Philadelphia  v.  Woman's  Christian  Ass'n  (1S89)  125  Pa.  St. 
572,  17  Atl.  475;  Philadelphia  v.  Pennsylvania  Hospital,  47  Leg.  Int. 
70. 

i6o  in  re  McPherson  (1887)  104  N.  Y.  306,  10  N.  E.  685;  Wallace 
y.  Myers,  38  Fed.  184. 

(71) 


§    31  NATURE    OF    TAX    AND    ITS    CONSTITUTIONALITY.       [Ch.   2 

pose  a  succession  tax  may  be  delegated  by  the  legislature 
to  counties  and  municipal  corporations,  though  it  should  be 
plainly  and  unmistakably  conferred,  and  the  law  will  be 
strictly  construed.181 

isi  Peters  v.  City  of  Lynchburg,  76  Va.  927;    Schoolfield  v.  City  of 
Lynchburg,  78  Ya.    366.     Constitutional    rule  considered  with  ref- 
erence to  valuation  of  life  estates.    See  William's  Case,  3  Bland,  1S6. 
(72) 


Ch.  3]  EXEMPTIONS.  §   32 

CHAPTER  III. 

EXEMPTIONS.! 

f    32.    Taxation  the  General  Rule. 

33.  Policy  of  Inheritance,  Legacy,  and  Succession  Tax  Laws. 

34.  An  Enumeration  of  Statutory  Exemptions. 

(a)  New  York. 

(1)  Under  General  Tax  Laws. 

(2)  Collateral  Heirs  under  Acts  1S87  and  1892. 

(3)  Direct  or  Lineal  Heirs— Act  1892. 

(4)  Religious  and  Other  Corporations— Act  1890. 

(b)  Pennsylvania. 
(  )  Maryland. 

(d)  Virginia. 

(e)  West  Virginia. 

(f)  Delaware. 

(g)  Connecticut, 
(h)  North  Carolina. 
(i)  California. 

(j)  Maine, 
(k)  Massachusetts. 
(1)  New  Jersey, 
(m)  Ohio. 

(1)  Collateral  Heirs— Act  1893. 

(2)  Direct  or  Lineal  Heirs— Act  1894. 
(n)  Tennessee. 

(o)  Illinois. 

(p)  Minnesota. 
85.    Charitable,  Religious,  and  Other  Corporations  and  Objects. 
36.    Foreign  Corporations  and  Governments. 
87.    Adopted  Children— Mutually  Acknowledged  Relation  of  Par- 
ent and  Illegitimate  Children,  etc. 

38.  Widows,  and  Husbands  of  Deceased  Daughters. 

39.  Next  of  Kin,  Lineal  and  Lawful  Descendants. 

1  See,  also,  chapter  2,  §  30,  on  constitutionality  of  exemptions; 
chapter  4,  as  to  resident  and  nonresident  decedents;  chapter  6,  as  to 
constructive  exemptions,  remainders,  trusts,  powers,  and  legacies. 

(73) 


32  EXEMPTIONS.  [Ch.  3 

40.  Aliens,  Foreign  Legatees,  and  Nonresidents. 

41.  What  Estates  or  Interests  Taxable— Amounts  Limited. 

42.  Foreign  Real  Estate. 

43.  Legacies  when  Exempt  under  Acts  of  Congress. 


§  32.     Taxation  the  General  Rule. 

As  taxation  is  held  to  be  the  general  rule  extending  to 
all  species  of  property,  so  exemption  is  the  exception  to 
such  rule,  with  the  further  important  qualification  that 
statutes  purporting  to  grant  exemption  from  general  taxa- 
tion are  to  be  strictly  construed  against  the  claim.2  Such 
exemptions  are  neither  presumed  nor  allowed,  unless  there 
appears  from  the  language  of  the  statute  or  charter  to  be 
a  clear  intention  on  the  part  of  the  legislature  to  make  an 
exception  to  the  general  rule; 3  and,  where  the  law  is  doubt- 
ful, the  court  should  declare  against  the  exemption.4 

Where,  however,  a  particular  subject  is  within  the  scope 
of  the  taxing  power,  and  exemption  from  taxation  is  claim- 
ed on  the  ground  that  the  legislature  has  not  provided 
proper  machinery  for  accomplishing  the  legislative  purpose 
in  the  particular  instance,  a  liberal,  rather  than  a  strict, 
construction  should  be  applied;  and  if,  by  a  fair  and  reason- 
able construction  of  its  provisions,  the  purpose  of  the  stat- 

2  Cooley,  Tax'n  (2d  Ed.)  205;  Tucker  v.  Ferguson,  22  Wall.  527; 
People  v.  Long  Island  City,  76  N.  Y.  20;  Association  for  Benefit  of 
Colored  Orphans  v.  Mayor,  etc.,  of  New  York,  104  N.  Y.  587,  12  N. 
E.  279. 

s  Cooley,  Tax'n  (2d  Ed.)  204,  and  cases  cited;  People  v.  Roper,  35 
N.  Y.  629;  People  v.  Davenport,  91  N.  Y.  574;  Wilson  v.  Gaines, 
103  U.  S.  421. 

4  Roosevelt  Hospital  v.  Mayor,  etc.,  of  New  York,  84  N.  Y.  108; 
People  v.  Collison  (Sup.)  6  N.  Y.  Supp.  711;  Louisville  &  N.  R.  Co. 
v.  Gaines,  2  Flip.  621,  3  Fed.  266.  And  see  Fox  v.  Com.,  16  Grat.  1: 
In  re  Forrester  (1890;  Sup.)  12  N.  Y.  Supp.  774;  In  re  Stiger  (1S94; 
Suit.)  28  N.  Y.  Supp.  103;  In  re  Fay er weather  (1S94)  143  N.  Y.  119, 
38  N.  E.  278. 
(74) 


Ch.  3]  EXEMPTIONS.  §   53 

ute   can  be  carried  out,  that  interpretation   ought  to  be 
given  to  effectuate  the  legislative  intent5 

Special  tax  laws,  however,  are  to  be  construed  most  strict- 
ly against  the  government,  and  most  favorably  to  the  tax- 
payer;6 and  a  citizen  cannot  be  subjected  to  such  special 
burdens  without  clear  warrant  of  law.7 


§  33.     Policy  of  Inheritance,  Legacy,  and  Succession 

Tax  Laws. 

As  has  already  been  observed  in  the  first  chapter,  it  has 
been  the  policy  of  these  laws  from  the  earliest  times  to 
make  exemptions.  Those  that  were  allowed,  however,  were 
strictly  confined,  for  the  most  part,  to  gifts  to  the  near  rel- 
atives of  the  decedent,  and  to  the  poor.  Charitable  insti- 
tutions do  not  seem,  originally,  to  have  been  so  generally 
favored.  This  rule  has  been,  however,  widely  departed 
from  by  most  of  the  American  states  which  have  enacted 
inheritance  and  succession  laws.  So,  under  the  English 
legacy  duty  act,  saving  husband  and  wife,  and,  subsequent- 
ly, certain  well-defined  charitable  and  religious  corpora- 
tions and  institutions,8  the  law  makes  no  exceptions,  even 
to  the  nearest  blood  relations.  As  to  the  latter,  however, 
in  pursuance  of  the  principle  of   graduation,  the  tax  is 

s  In  re  Enston's  Will,  113  N.  Y.  174,  21  N.  E.  87;  In  re  Stewart 
(1S92)  131  N.  Y.  274,  2S2,  30  N.  E.  184. 

eDwar.  St.  742-749;  Gurr  v.  Scudds,  11  Exch.  190;  U.  S.  v.  Wig- 
glesworth,  2  Story,  369;  U.  S.  v.  Watts,  1  Bond,  580;  Fox  v.  Com., 
supra;  In  re  Fayerweatner,  supra;  Partington  v.  Atty.  Gen.,  L.  R. 
4  H.  L.  100,  122. 

7  In  re  Enston's  Will,  113  N.  Y.  178,  21  N.  E.  87,  and  cases  cited; 
In  re  Vassar  (1891)  127  N.  Y.  12,  27  N.  E.  394;  Cullen's  Estate  (1S91) 
142  Pa.  St.  18,  21  Atl.  781;  Hale's  Estate  (1894)  161  Pa.  St.  182,  28 
Atl.  1071. 

8  56  Geo.  m.  c.  56;   5  &  6  Vict.  c.  82. 

(75) 


§   33  EXEMPTIONS.  [Ch.  3 

made  proportionately  smaller  than  that  which  is  imposed 
upon  strangers  and  collaterals.  So  the  laws  imposing  a 
succession  tax,  passed  by  congress  during  the  Rebellion, 
following  the  English  statute,  imposed  the  duty  uniformly 
upon  all  who  took  by  inheritance  or  intestacy.  The  legacy 
act,  however,  excepted  husband  and  wife.9 

But  under  the  state  laws  exemptions  have  been  generally 
extended  so  as  to  embrace,  not  only  near  relatives  and 
lineal  descendants,  but  many  collateral  heirs  and  charitable 
and  religious  corporations.  And  the  policy  seems  also  to 
be  to  relieve  all  estates  or  shares  if  under  a  certain  fixed 
sum,  the  maximum  amount  exempted  being  from  $500  to 
$10,000  in  New  York. 

In  New  York  and  Connecticut  exemptions  under  the  col- 
lateral inheritance  laws  have  been  carried  to  an  extreme 
limit,10  and,  it  seems,  beyond  the  true  idea  and  scope  of  a 
collateral  tax  law.  The  statutes  of  these  states  except  not 
only  all  lineal  descendants  born  in  lawful  wedlock,11 — which 
is  the  true  limit  of  a  collateral  tax  law, — but  also  certain 
collaterals  and  adopted  children,12  and  in  New  York  va- 
rious societies,  institutions,  and  corporations  that  are  ex- 
empt by  law  from  taxation,13  and  by  the  act  of  1892  other 
exemptions  are  specified;14  while  in  Connecticut  bequests 
for  charitable  purposes  and  for  purposes  strictly  public, 

»  Rev.  St.  U.  S.  (2d  Ed.  1878)  §§  3438,  3439. 

io  This  is  especially  so  in  the  former  state,  as  regards  charitable, 
religious,  tract,  literary,  and  other  corporations,  for  sweeping  ex- 
emption has  recently  been  granted  them  by  Laws  1890,  c.  553.  See, 
also,  Laws  1892,  c.  399,  §§  1,  2.     See  Appendix,  I.  b. 

1 1  The  New  York  statute  of  1892  now  taxes  both  classes. 

12  The  only  pure  succession  tax  laws  are  those  in  force  in  Eng- 
land, and  the  nearest  approach  in  this  country  are  the  laws  of  con- 
gress, now  repealed,  and  those  of  Delaware,  Maryland,  Ohio,  New 
York,  and  Illinois. 

is  See  Laws  1S90,  supra. 

"  See  Appendix,  I.,  Laws  1892,  c.  399,  §§  1,  2. 
(76) 


Ch.  3]  EXEMPTIONS.  §   34 

within  the  state,16  and  the  lineal  descendants  of  adopted 
children,  are  also  exempted.  These  several  exemptions  are, 
however,  expressly  made  by  the  acts  themselves.18 

Without  discussing  the  question  whether  it  would  not  be 
wiser  to  adopt  a  system  that  would  impose  the  burden 
equally  upon  all  inheritance  and  successions  over  a  certain 
sum,17  exempting  only  purely  charitable  institutions  that 
rely  upon  gratuitous  donations,  the  object  of  the  present 
chapter  will  be  best  subserved  by  a  brief  presentation  and 
review — First,  of  the  several  statutory  exemptions  thus  far 
enacted  in  this  country,  and,  second,  of  the  decisions  ren- 
dered under  such  statutes;  and  this  brings  us  to 


§  34.     An  Enumeration  of  Statutory  Exemptions. 

(a)  New  York. 

(1)   Under  General  Tax  Laws. 

The  general  laws  of  New  York  on  taxation,  and  provid- 
ing for  exemptions  therefrom,  are  contained  in  the  New 
York  Kevised  Statutes.18 

The  provisions  deemed  applicable  to  the  exemptions  un- 
der the  collateral  or  transfer  tax  laws  are  as  follows: 

"Sec.   1.  All  lands  and   all   personal   estate  within   this 

its  Appendix,  VII.,  Laws  1889,  §§  1-17. 

16  Laws  N.  Y.  1SS5,  c.  4S3,  amended  by  Laws  1887,  c.  713,  §  1; 
Laws  1SS9,  c.  479;  Laws  1889,  c.  307;  Laws  1890,  c.  553;  Laws 
1S92,  c.  399,  §§  1,  2;  Laws  Conn.  18S9,  p.  100,  §§  1-17.  See  Appen- 
dix, I.,  VII. 

«  in  New  York,  under  Act  1892,  c.  399,  and  Ohio,  by  statute 
passed  in  1893  and  1894,  both  collateral  and  lineal  heirs  are  now 
taxed.  The  statute  of  Ohio  taxing  lineal  heirs  has  been  declared 
unconstitutional,  as  violating  the  rule  of  the  state  constitution  re- 
quiring equality  and  uniformity.  State  v.  Ferris,  9  Ohio  Cir.  Ct.  R. 
299;  affirmed  23  Wkly.  Law  Bui.  (Ohio)  July  1,  1895,  349,  352. 
Opinion  will  be  published  in  N.  E.  Rep.  as  soon  as -handed  down. 

is  Banks'  8th  Ed.  vol.  2,  p.  10S2,  pt.  1,  c.  13,  tit.  1. 

(77) 


§  34  EXEMPTIONS.  [Ch.  3 

state,  whether  owned  by  individuals  or  by  corporations, 
shall  be  liable  to  taxation,  subject  to  the  exemptions  here- 
inafter specified.     *     *     * 

"Sec.  4.  The  following  property  shall  be  exempt  from 
taxation : 

"(1)  All  property,  real  or  personal,  exempted  from  tax- 
ation by  the  constitution  of  this  state  or  under  the  consti- 
tution of  the  United  States. 

"(2)  All  lands  belonging  to  this  state  or  to  the  United 
States. 

"(3)  Every  building  erected  for  the  use  of  a  college,  incor- 
porated academy,  or  other  seminary  of  learning,  and  in  ac- 
tual use  for  either  of  such  purposes;  every  building  for  pub- 
lic worship;  every  school-house,  court-house  and  jail,  used 
for  either  of  such  purposes;  and  the  several  lots  whereon 
such  buildings  are  situated,  and  the  furniture  belonging  to 
each  of  them.19 

"(4)  Every  poor-house,  alms-house,  house  of  industry,20 
and  every  house  belonging  to  a  company  incorporated  for 
the  reformation  of  offenders,  or  to  improve  the  moral  con- 
dition of  seamen,21  and  the  real  and  personal  property  used 
for  such  purposes  belonging  to  or  connected  with  the  same. 

is  See  In  re  Vassar,  127  N.  Y.  1,  27  N.  E.  397.  The  New  York 
consolidation  act  (Laws  1S82,  c.  410,  §  827)  makes  these  provisions 
inapplicable  to  any  such  building  for  public  worship,  and  any  such 
schoolhouse  or  other  seminary  of  learning,  in  the  city  of  New  York, 
"unless  the  same  shall  be  exclusively  used  for  such  purposes,  and 
exclusively  the  property  of  a  religious  society."  Young  Men's 
Christian  Ass'n  v.  Mayor,  etc.,  of  New  York,  113  N.  Y.  189,  21  N. 
E.  86.  As  to  schoolhouses,  see  Church  of  St.  Monica  v.  Mayor,  su- 
pra. See,  also,  Congregation  Kal  Israel  Auschi  Poland  v.  City  of  New 
York  (Sup.)  1  N.  Y.  Supp.  35.  For  institutions  in  New  York  City 
exempted  from  taxation,  see  Laws  18S2,  c.  410,  §§  824,  827. 

20  Estate  of  Noyes,  N.  Y.  Law  J.  July  5,  1890. 

2i  In  re  Yanderbilt's  Estate  (Surr.)  10  N.  Y.  Supp.  239. 
(78) 


Ch.    oj  EXEMPTIONS.  §    34 

"(5)  The  real  and  personal  property  of  every  public  li- 
brary.22 

"(G)  All  stocks  owned  by  the  state,  or  by  literary  or  char- 
itable institutions. 

"(7)  The  personal  estate  of  every  incorporated  company 
not  made  liable  to  taxation  on  its  capital,  in  the  fourth 
title  of  this  chapter."  23 

(2)  Collateral  Heirs  Under  Neio  York  Ads  of  1887  and  1892. 
Under  the  statutes  in  force  in  this  state  prior  to  the 
act  of  1892, 24  the  tax  imposed  was  purely  in  the  nature  of 
a  collateral  inheritance  tax,  the  exemptions  under  which 
are  given  in  the  note.25 

22  in  re  Lenox's  Estate  (Surr.)  9  N.  Y.  Supp.  895. 

23  The  following  is  the  provision  referred  to  in  the  last  subdivi- 
sion: Section  1.  "All  monied  or  stock  corporations,  deriving  an  in- 
come or  profit  from  the  capital  or  otherwise,  shall  be  liable  to  taxa- 
tion on  their  capital  in  the  manner  hereinafter  prescribed."  2  Rev. 
St.  (Banks'  8th  Ed.)  p.  1149.  See,  construing  this  section,  Catlin  v. 
Trustees  of  Trinity  College,  113  N.  Y.  133,  20  N.  E.  864;  In  re  Van- 
derbilt's  Estate,  supra,  and  cases  post,  p.  98,  note  99.  For  a  list  of 
exemptions  by  special  statutes,  see  Davis'  System  of  Taxation  (N. 
Y.)  p.  288;   also,  Laws  1890,  c.  553,  Appendix,  I.  b. 

24  See  Appendix,  I.,  Laws  1892,  c.  399.  By  secjtion  23  of  this  act 
the  following  statutes  were  expressly  repealed:  Laws  1SS5,  c.  483; 
Laws  1SS7,  c.  713;  Laws  1889,  c.  307;  Laws  18S9,  c.  479;  Laws 
1891,  g.  215.  These  statutes,  excepting  that  of  1885,  have  been  re- 
tained in  the  Appendix,  in  order  that  the  prior  law  may  be  readily 
consulted.  The  following  statutes  seem  to  be  yet  in  force,  and  are 
also  given  in  the  Appendix:  Laws  1S90,  c.  553;  Laws  1892,  c.  168. 
See,  also,  Laws  1S93,  c.  199,  §  2,  repealing  Laws  1892,  c.  443;  Laws 
1893,  p.  1725,  c.  692,  §  48c;  Laws  1894,  p.  1929,  c.  767,  amending 
Laws  1892,  c.  399,  §  14.  For  a  collection  of  decisions  under  these 
acts,  see  3  Bliss'  N.  Y.  Code  (3d  Ed.)  p.  2782. 

25  Persons  and  corporations  exempt  under  Act  1887,  etc.: 

(1)  Father,  mother,  husband,  wife,  child,  brother,  sister. 

(2)  The  wife  or  widow  of  a  son,  or  the  husband  of  a  daughter,  or 

(3)  Any  child  or  children  adopted  as  such  in  conformity  with  the 

(79) 


§   34  EXEMPTIONS.  [Ch.  3- 

(3)  Direct  or  Lineal  Heirs — Act  1892. 

The  old  statutes  being  repealed,  the  act  of  1892  2e  now 
taxes  property  passing  to  two  classes:    First,  to  certain 

laws  of  the  state,  or  any  person  to  whom  the  deceased,  for  not  less 
than  10  years  prior  to  his  or  her  death,  stood  in  the  mutually  ac- 
knowledged relation  of  parent. 

(4)  And  any  lineal  descendants  of  such  decedent  horn  in  lawful 
wedlock,  or 

(5)  The  societies,  corporations,  and  institutions  now  exempted  by 
law  from  taxation.  Laws  1S87,  c.  713,  §  1.  See  Appendix,  I.  a. 
Act  1885,  c.  483,  only  applies  to  property  of  decedents  dying  after 
June  30,  1885,  when  the  act  took  effect.  In  re  Howe,  112  N.  Y.  100, 
19  N.  E.  513;  In  re  Thompson,  14  N.  Y.  St.  Rep.  487,  overruling  In 
re  Chardavoyne,  5  Dem.  Sur.  460. 

(6)  Legacies  worth  less  than  $500.  See  In  re  Sherwell's  Estate, 
125  N.  Y.  379,  26  N.  E.  464;  In  re  Underbill's  Estate  (Surr.)  20  N. 
Y.  Supp.  134. 

(7)  Bequests  to  executors  in  lieu  of  commissions.  And  by  Laws 
1SS9,  c.  479,  the  persons  embraced  in  class  3  are  relieved  retrospec- 
tively from  the  tax  theretofore  imposed  uuder  Act  1S85,  c.  483. 

The  amendatory  act,  however,  only  applies  to  such  persons  against 
whom  no  assessment  of  the  tax  had  been  made  at  the  time  it  be- 
came a  law, — June  14,  1889.  In  re  Hughes,  N.  Y.  Law  J.,  July  27, 
1SS9;  In  re  Kemeys,  56  Hun,  117,  9  N.  Y.  Supp.  182.  As  to  consti- 
tutionality of  retrospective  exemptions,  see  chapter  2,  §  30. 

2  6  The  title  of  the  act  is  "An  act  in  relation  to  taxable  transfers  of 
property."  The  word  "transfer"  fails  appropriately  to  express  the 
true  nature  of  this  tax,  and  it  became  necessary  to  define  it  in  the 
act  (section  22,  c.  399):  "The  word  'transfer'  as  used  in  this  act, 
shall  be  taken  to  include  the  passing  of  property  or  any  interest 
therein  in  possession  or  enjoyment,  present  or  future,  by  inherit- 
ance, descent,  devise,  bequest,  grant,  deed,  bargain,  sale  or  gift,  in 
the  manner  herein  described."  See  In  re  Hoffman's  Estate,  143 
N.  Y.  327,  38  N.  E.  311.  The  word  "transfer"  is  not  restricted 
to  a  conveyance  or  deed,  but  also  includes  transfers  by  will.  Tal- 
madge  v.  Seaman,  85  Hun,  242,  32  N.  Y.  Supp.  906;  reversed  as  In 
re  Seaman  (Oct.  8,  1895;  Ct.  App.)  41  N.  E.  401.  See,  also,  In  re 
Brooks'  Estate  (Surr.)  Id.  176;  In  re  Forsyth,  10  Misc.  Rep.  477,  32 
N.  Y.  Supp.  175. 
(80) 


Ch.    3]  EXEMPTIONS.  §    34 

collateral  heirs,  corporations,  and  strangers,  at  the  rate  of 
5  per  cent.;27  and,  second,  personal  property  of  the  value 
of  |10,000  or  more,  passing  to  certain  lineals  and  others  at 
the  rate  of  1  per  cent.28 

The  tax  of  5  per  cent,  is  imposed  upon  the  transfer  of  any 
property,  real  or  personal,  of  the  value  of  $500  or  over,  or 
of  any  interest  therein,  or  income  therefrom,  in  trust  or 
otherwise,  to  persons  or  corporations  not  exempt  by  law 
from  taxation  on  real  or  personal  property: 29 

(1)  When  the  transfer  is  by  a  resident. 

(2)  When  the  transfer  is  of  property  within  the  state, 
and  decedent  was  a  nonresident  at  death. 

(3)  Where  the  transfer  is  by  a  resident  or  nonresident, 
when  the  latter's  property  is  within  the  state,  by  deed, 
grant,  bargain,  sale,  or  gift,  made  in  contemplation  of  the 
death  of  the  grantor,  vendor,  or  donor,  or  intended  to  take 
effect  in  possession  or  enjoyment  at  or  after  such  death. 
"Such  tax  shall  also  be  imposed  when  any  such  person  or 
corporation  becomes  beneficially  entitled  in  possession  or 
expectancy  to  any  property,  or  the  income  thereof,  by  any 
such  transfer,  whether  made  before  or  after  the  passage 
of  this  act." 30      The  tax  on  property  passing  to  lineals  is 

27  Laws  1892,  c.  399,  §  1,  subd.  3. 

28  Laws  1892,  c.  399,'§  2. 

2  9  The  tax  is  upon  the  estate.  The  limitation  to  $500  in  this  sec- 
tion relates  to  the  aggregate  estate  of  decedent,  and  not  to  the  share 
of  the  legatee.  This  is  a  change  in  the  law  as  it  existed  prior  to 
the  act  of  1892.  In  re  Taylor's  Estate  (Suit.)  27  N.  Y.  Supp.  232. 
Legacies  to  strangers  of  $100  are  taxable  where  the  property  passing 
to  the  unexempted  class  amounts  in  the  aggregate  to  more  than 
$."300.  In  re  Flynn's  Estate  (Suit.)  30  N.  Y.  Supp.  3S8;  In  re  Hoff- 
man's Estate,  143  N.  Y.  333,  38  N.  E.  311;  In  re  Hall  (Sup.)  34  N. 
Y.  Supp.  616.  Contra,  In  re  Sterling's  Estate  (Suit.)  30  N.  Y.  Supp. 
385;  In  re  Skillman's  Estate  (Suit.;  1894)  32  N.  Y.  Supp.  780,  where 
the  surrogate  refused  to  follow  the  Hoffman  Case. 

so  Laws  1892,  c.  399,  §  1,  subd.  3.  The  last  clause  of  this  section 
LAW  INHER. — 6  (81; 


§   34  EXEMPTIONS.  [Ch.  3 

further  restricted  by  a  limitation  that  such  transfer  of 
property  shall  not  be  taxable  "unless  it  is  personal  property 
of  the  value  of  f  10,000  or  more."  31 

The  following  classes  of  persons  under  the  act  of  1892  pay 
the  tax  of  1  per  cent.,  and  are  thus  exempt  from  the  other 
tax: 

(1)  Father,  mother,  husband,  wife,  child,  brother,  sister; 

(2)  Wife  or  widow  of  a  son ;  or  the 

(3)  Husband  of  a  daughter;   or 

(4)  Child  or  children  adopted  as  such  in  conformity  with 
the  laws  of  the  state;  or 

(5)  Persons  to  whom  decedent,  grantor,  donor,  or  vendor, 
for  not  less  than  10  years  prior  to  such  transfer,  stood  in 
the  mutually  acknowledged  relation  of  a  parent;  or 

is  retroactive,  so  far  as  the  legal  estate  is  concerned,  but  not  as  to 
the  beneficial  interest,  where  it  came  into  existence  after  the  pas- 
sage of  the  act.  Tallmadge  v.  Seaman,  So  Hun,  242,  32  N.  Y.  Supp. 
906;  see  p.  80,  note  26;  In  re  Brooks  (Surr.)  32  N.  Y.  Supp.  176; 
In  re  Forsyth,  10  Misc.  Rep.  477,  32  N.  Y.  Supp.  175.  See  the  sub- 
ject considered  in  chapter  6,  §  5S,  subd.  3,  f. 

si  Laws  1SU2,  c.  399,  §  2.  See  section  22.  Under  this  provision,  in 
connection  with  the  definition  of  the  words  "estate"  and  "property," 
in  section  22  of  the  act,  it  has  been  held  that  the  words,  "unless  it  is 
personal  property  of  the  value  of  ?10,0O0,  or  over,"  apply  to  the  ag- 
gregate property  of  the  testator  or  decedent,  and  not  to  the  property 
passing  to  the  legatee  or  devisee,  and  that  if  the  aggregate  property 
passing  is  $10,000,  or  over,  it  is  taxable,  notwithstanding  the  legatees 
take  less  than  that  amount.  The  court  said:  "And  so  we  are  pre- 
pared to  say  that  the  interest  of  the  mother  [life  tenant]  is  taxable 
at  one  per  cent.,  although  itself  of  a  value  of  less  than  $10,000,  be- 
cause the  aggregate  transfers  by  the  will  to  taxable  persons  ex- 
ceeded that  amount."  In  re  Hoffman's  Estate  (1894)  143  N.  Y. 
333,  38  N.  Y.  Supp.  311,  and  cases  cited  supra,  note  29.  Contra, 
In  re  Skillman,  supra.  To  this  extent  the  rule  adopted  under  the 
former  statutes  is  modified,  as  the  court  concede.  See  In  re  Cager's 
Will,  111  N.  Y.  344,  18  N.  E.  S66;  In  re  Howe,  112  N.  Y.  100,  19  N. 
E.  513. 
(82) 


Ch.   3]  EXEMPTIONS.  §   34 

(G)  Lineal  descendants  of  decedent,  born  in  lawful  wed- 
lock. 

The  exemptions  under  the  act  of  1S92  are: 
(1)  Property,  real  and  personal,  of  less  value  than  foOO.32 
(2i)   Personalty   of   less   value  than   |10,000,   passing  to 
lineals  33  and  others. 

(3)  All  real  estate  passing  to  lineals.3* 

(4)  Persons  or  corporations  exempt  by  law  from  taxation 
on  real  or  personal  property.35 

(5)  Any  property  heretofore  or  hereafter  devised  or  be- 
queathed to  any  person  who  is  a  bishop,36 

(6)  Or  to  any  religious  corporations.37 

(7)  Devises,  etc.,  to  executors  in  lieu  of  commission.  Ex- 
cess taxable.38 

(4)  Religious  and  Other  Corporations — Act  1890. 

By  the  act  of  1890,39  the  following  13  or  more  corpora- 
tions are  also  exempt:    "Any  religious,  educational,  Bible, 

32  Laws  1S02,  c.  399,  §  1. 

3  3  Laws  1S92,  c.  399,  §  2;  that  is,  where  the  aggregate  value  of 
the  estate  does  not  exceed  $10,000.     In  re  Hoffman's  Estate,  supra. 

34  As  to  when  realty  is  or  is  not  taxable  as  personalty,  under  the 
doctrine  of  equitable  conversion,  see  chapter  4,  §  46,  subd.  b. 

3  5  Laws  1892,  c.  399,  §  1. 

3  6  Laws  1892,  c.  399,  §  2.  See,  also,  Laws  1S92,  c.  169;  Roman 
Catholic  Church  v.  Niles,  86  Hun,  221,  33  N.  Y.  Supp.  243,  holding 
that  this  section  applies  to  cases  where  the  tax  had  become  due.  but 
was  not  paid,  at  the  time  the  law  was  enacted,  and  is  not  solely  ap- 
plicable to  those  cases  where  no  appraisement  could  be  made.  See, 
also,  People  v.  Commissioner"  of  Taxes  &  Assessments,  142  N.  Y.  34S. 
37  N.  E.  116. 

3  7  Laws  1892,  c.  399,  §  2. 

3  8  Laws  1S92,  c.  399,  §  8. 

39  See  Appendix,  I.  b,  c.  553,  approved  June  7,  1890,  entitled 
"An  act  to  amend  chapter  191  of  the  Laws  of  1SS9,  entitled  'An 
act  to  limit  the  amount  of  property  to  be  held  by  corporations  organ- 
ized for  other  than  business  purposes,  and  relating  to  such  corpora- 

(83) 


§   34  EXEMPTIONS.  [Ch.  3 

missionary,  tract,  literary,  scientific,  benevolent,  or  chari- 
table corporation,  or  corporation  organized  for  the  enforce- 
ment of  laws  relating  to  children  or  animals,  or  for  hospital, 
infirmary,  or  other  than  business  purposes:  *  *  *  pro- 
vided, that  this  provision  shall  not  apply  to  any  monied  or 
stock  corporation  deriving  an  income  or  profit  from  the 
[its]  capital  or  otherwise,  or  to  any  corporation  which  has 
the  right  to  make  dividends,  or  to  distribute  profits  or  as- 
sets among  its  members."  40 

(b)  Pennsylvania. 41 

(1)  Father,  mother,  wife,  children,  and 

(2)  Lineal  descendant  born  in  lawful  wedlock,  or 

(3)  Wife  or  widow  of  the  son  of  the  person  dying  seised 
or  possessed. 

(4)  Estates  of  less  than  f  250. 

(5)  Bequests  to  executors  (of  a  fair  and  reasonable  sum) 
in  lieu  of  commissions.     Excess  taxable.42 

tions."  It  would  seem  that  the  institution  should  be  legally  incorpo- 
rated, in  order  to  come  within  the  statute.  Church  of  St.  Monica  v. 
Mayor,  etc.,  of  New  York,  119  N.  Y.  91,  23  N.  E.  294.  This  act  is  not 
retroactive.  Sherrill  v.  Christ  Church,  121  N.  Y.  701,  25  N.  E.  50,  re- 
versing In  re  Van  Kleeck,  55  Hun,  472,  8  N.  Y.  Supp.  S06.  See  In  re 
Miuturn  (July  18,  1890)  3  N.  Y.  Law  J.  804;  In  re  Vassar,  127  N.  Y. 
10,  27  N.  E.  397. 

40  See  In  re  Vanderbilt's  Estate  (Surr.)  10  N.  Y.  Supp.  239.  Colum- 
bia College,  in  the  city  of  New  York,  is  exempt,  under  this  act.  In  re 
Da  Costa  (March  12,  1891)  4  N.  Y.  Law  J.  1470.  The  United  States, 
as  a  legatee,  is  not  exempt  under  this  act,  as  a  foreign  corporation,  as 
it  relates  merely  to  domestic  corporations.  In  re  Cullum's  Estate,  5 
Misc.  Rep.  173,  25  N.  Y.  Supp.  699;  Id.,  76  Hun,  610,  27  N.  Y.  Supp. 
1105,  and  145  N.  Y.  593,  40  N.  E.  103;  In  re  Hamilton's  Estate 
(Sept.  9,  1895)  13  N.  Y.  Law  J.  1384;  In  re  Merriam's  Estate,  141  N. 
Y.  479,  36  N.  E.  505;  In  re  Prime,  136  N.  Y.  347,  32  N.  E.  1091. 

4i  Laws  1887,  p.  79,  §  1;    Appendix,  III. 

*2  By  Const.  Pa.  1873,  art.  9,  "the  general  assembly  may  by  general 
laws  exempt  from  taxation  public  property,  held  for  public  purposes; 
(84) 


Ch.  3]  EXEMPTIONS.  §   34 

(c)  Maryland.43 

(1)  The  father,  mother,  husband,  wife,  children,  and 

(2)  Lineal  descendants  of  the  decedent. 

(3)  Estates  under  $5( 


(d)  Virginia.*4 

(1)  Lineal  descendants,  or 

(2)  Father,  mother,  husband,  wife,  brother,  sister. 

(3)  Nephew  or  niece. 

(e)  West  Virginia.45 

(1)  Father,  mother,  wife,  children,  and 

(2)  Lineal  descendants  of  the  grantor,  devisor,  or  intes- 
tate. 

(3)  Surviving  husband. 

(4)  Estates  under  $1,000. 

(f)  Delaware.46 

(1)  Father,  mother,  wife,  children,  and 

(2)  Lineal  descendants  of  the  decedent. 

(3)  Estates  under 


actual  places  of  religious  worship,  places  of  burial  not  owned  or  held 
for  private  or  corporate  profit,  and  institutions  of  purely  public  char- 
ity." See  Philadelphia  v.  Women's  Christian  Ass'n  (18S9)  125  Pa.  St. 
572,  17  Atl.  475;  Philadelphia  v.  Pennsylvania  Hospital,  47  Phila. 
Leg.  Int.  70. 

4  3  2  Pub.  Gen.  Laws  Md.  1888,  p.  1242,  art.  81,  §  102.  See  Appen- 
dix, VIII.  This  statute  is  a  model  of  good  drafting,  and  contains 
some  excellent  provisions,  especially  those  relating  to  contingent  re- 
mainders, etc. 

44  Acts  1866-67,  p.  861,  c.  64,  §  3. 

4  5  Warth's  Code  (2d  Ed.)  c.  32;  Laws  1887,  c.  31;  Code  1891,  c.  32, 
§51a. 

4  6  Tax  1  to  5  per  cent.    Rev.  Code  1S74,  p.  38'. 

(85) 


§  34  EXEMPTIONS.  [Ch.  3 

(g)  Connecticut.47 

(1)  Father,  mother,  husband. 

(2)  Lineal  descendants. 

(3)  Adopted  child. 

(4)  Lineal  descendants  of  any  adopted  child. 

(5)  The  wife  or  widow  of  a  son. 

(6)  The  husband  of  the  daughter  of  decedent,  or 

(7)  Bequests  for  some  charitable  purpose,  or 

(8)  Purposes  strictly  public  within  the  state. 

(9)  Estates  under  $1,000. 

(10)  Brothers  and  sisters  of  decedent.* 

The  statute  defines  the  words  "charitable  purpose"  to  in- 
clude gifts  to  an}7  educational,  benevolent,  ecclesiastical, 
or  missionary  corporation,  association,  or  object.48 

(h)  North  Carolina.49 

(1)  Lineal  descendant,  or 

(2)  Ancestor  of  the  husband  or  wife  of  the  deceased. 

(3)  Husband  or  wife  of  such  ancestor  or  decedent,  or  to 
which  such  collateral  relations  may  become  entitled  to  un- 
der the  law  for  the  distribution  of  the  intestate's  estate, 
and  which  real  and  personal  property  may  not  be  required 
in  payment  of  debts  and  other  liabilities. 

1.  If  such  collateral  relations  be  brother  or  sister  of  the 
father  or  mother  of  the  deceased,  or  issue  of  such  brother 
or  sister,  a  tax  of  1  per  cent,  is  imposed. 

2.  If  such  collateral  relation  be  a  more  remote  relation, 
or  the  devisee  or  legatee  be  a  stranger,  a  tax  of  2|  per  cent, 
is  imposed.50 

4  7  Pub.  Laws  1889,  p.  106,  c.  180.    See  Appendix,  VII. 
*  Laws  1893,  c.  257,  p.  406,  Appendix,  VII. 
4  8  Section  17. 

40  Bat.  Revisal  1873,  p.  775,  §  59.    Repealed  by  Code  N.  C.  1883,  § 
3867. 
so  The  statutes  of  Louisiana  and  those  of  congress  have  been  re- 
(SO) 


Ch.  3]  EXEMPTIONS.  §   34 

(i)   California.51 

(1)  Father,  mother,  husband,  and  wife. 

(2)  Lawful  issue. 

(3)  Brother,  sister. 

(4)  Wife  or  widow  of  a  son,  or 

(5)  Husband  of  a  daughter,  or 

(6)  Adopted  child  or  children. 

(7)  Lineal  descendants  born  in  lawful  wedlock. 

(8)  Societies,  corporations,  and  institutions  now  exempted 
by  law  from  taxation. 

(9)  Estates  of  less  sum  than  $500. 52 

(10)  Bequests  to  executors  or  trustees  in  lieu  of  commis- 
sion.    Excess  taxable. 

(j)  Maine.53 

(1)  Father,  mother,  husband,  wife. 

(2)  Lineal  descendant. 

(3)  Adopted  child. 

(4)  Lineal  descendant  of  adopted  child. 

(5)  Wife  or  widow  of  a  son. 

(6)  Husband  of  daughter. 

(7)  Estates  above  $500. 

(8)  Bequests  to  executors  in  lieu  of  allowances. 

(9)  Educational,  charitable,  or  benevolent  institutions  in 
the  state.f 

pealed,  but  an  inheritance  tax  is  put  in  the  federal  income  tax  of 
1S94,  which  has  been  declared  unconstitutional.  See  chapter  1,  §  5; 
c.  11,  §  12. 

si  See  Appendix,  IX.,  St.  Cal.  1893,  c.  168. 

52  St.  Cal.  1S93,  c.  168,  §  1. 

ss  See  Appendix,  V.,  Laws  Maine  1S93,  c.  146,  §  1;  Laws  1895, 
ec.  96,  124,  amending  Laws  1893.  Held  constitutional  in  State  v. 
Hamlin  (1894)  86  Me.  507,  30  Atl.  76.    See  chapter  2,  §  2. 

t  Laws  1895,  c.  96,  Appendix,  V. 

(87) 


§   34  EXEMPTIONS,  [Ch.  3 

(k)  Massacfatsctts.54 

(1)  Father,  mother,  husband,  wife. 

(2)  Lineal  descendant. 

(3)  Brother,  sister. 

(4)  Adopted  child. 

(5)  Lineal  descendant  of  adopted  child. 
(G)  Wife  or  widow  of  a  son. 

(7)  Husband  of  a  daughter  of  decedent. 

(8)  Charitable,  educational,  or  religious  societies  or  insti- 
tutions, the  property  of  which  is  exempt  by  law  from  taxa- 
tion. 

(9)  Estates  of  less  than  $10,000. 

(10)  Executors,  compensation  to.     Excess  taxable.65 

(1)  New  Jersey.56 

(1)  Father,  mother,  husband,  wife. 

(2)  Children. 

(3)  Brother  or  sister. 

(4)  Lineal  descendants  born  in  lawful  wedlock: 

(5)  Wife  or  widow  of  a  son. 

(6)  Husband  of  a  daughter. 

(7)  Estates  of  less  than  $500. 

(8)  Churches,  hospitals,  orphan  asylums,  public  libraries, 
bible  and  tract  societies,  and  all  religious,  benevolent  and 
charitable  institutions  and  organizations. 

(m)   Ohio. 

In  Ohio  there  are  (or  at  least  there  were)  two  statutes  in 
force, — one  still  in  force  imposing  a  tax  of  5  per  cent,  upon 
property  passing  to  collaterals  and  strangers,  enacted  in 

5  4  See  Appendix,  IV.,  Laws  1891,  c.  425,  §  1.  Held  constitutional 
in  Minot  v.  Winthrop  (1894)  1G2  Mass.  116,  3S  N.  E.  512.  See  Laws 
1S93,  c.  2,  §  2. 

6  5  Laws  1891,  c.  425,  §  3. 

56  See  Appendix,  II.,  Laws  N.  J.  1S94,  c.  210,  repealing  Laws  1892, 
c.  210,  §  1;    Laws  1893,  c.  210. 
(88) 


Ch.  3]  EXEMPTIONS.  §   34 

1893; 57  and  the  other,  passed  in  1894,  and  recently  declared 
unconstitutional^  imposing  a  graduated  directed  inherit- 
ance tax  of  1  to  5  per  cent,  upon  property  passing  to  lineal s 
and  others.58 

(1)  Exemptions  under  Ohio  Collateral  Inheritance  Act  of  1893. 

(1)  Father,  mother,  husband,  wife. 

(2)  Brother,  sister. 

(3)  Niece,  nephew. 

(4)  Lineal  descendants. 

(5)  Adopted  child,  or 

(6)  Person  recognized  as  adopted  child.5* 

(7)  Lineal  descendant  thereof. 

(8)  Lineal  descendant  of  adopted  child. 

(9)  Wife  or  widow  of  a  son. 

(10)  Husband  of  daughter  of  decedent. 

(11)  f 200  from  appraised  value. 

(12)  Bequests  to  executors,  etc.,  in  lieu  of  commissions. 
Excess  taxable. 

(2)  Exemptions  under  Direct  Inheritance  Act  of  1894. 

By  the  Ohio  act  of  1894,60  the  direct  inheritance  tax  is 
imposed  upon  property  passing  to  the  persons  enumerated 
above, — class  1  to  10,  inclusive, — as  follows: 

57  See  Appendix,  VI.  a.  Constitutionality  of  these  acts  discussed 
in  Ohio  Leg.  News,  Jan.  12,  1S95,  p.  183;   Id.  Act  Jan.  27,  1803,  p.  17. 

%  See  chapter  2,  §  18. 

58  See  Appendix,  VI.  a.,  Laws  1894,  p.  169,  §  1.  This  act  has  been 
declared  unconstitutional,  as  violating  the  provisions  of  the  state  con- 
stitution requiring  equality  and  uniformity.  See  State  v.  Ferris,  9 
Ohio  Cir.  Ct.  R.  299,  affirmed  23  Wkly.  Law  Bui.  (Ohio)  July  1, 
1S95,  349,  352.  Opinion  will  be  published  in  N.  E.  Rep.  as  soon  as 
handed  down. 

59  Under  section  4182,  Rev.  St.  Ohio. 

so  See  Appendix,  VI.,  declared  unconstitutional  in  State  v.  Ferris, 
supra,  as  violating  the  rule  of  uniformity  and  equality,  under  section 
2,  art.  12,  Const.  Ohio,  and  article  14,  §  1,  Const  U.  S. 

(89) 


§  34 


EXEMPTIONS. 


[Ch.  a 


When  the  value  of  the  entire  property  of  such  decedent 
exceeds  the  sum  of 


50,000 

100,000 

200,000 

300,000 

500.000 ?>\% 

1,000,000 4    % 

5    % 


1  % 
H  % 

2  % 

3  % 


$  20,000  and  does  not  exceed  $ 
50.00!) 
100.000 
200.000 
300,000 
500.000 
1,000,000 

(n)  Tennessee}1 

(1)  Father. 

(2)  Mother. 

(3)  Husband,  or 

(4)  Wife. 

(5)  Children. 

(0)  Brothers  and  sisters. 
(7)  Sons-in-law. 

(S)  Daughters-in-law. 
(9)  Grandchildren. 

(o)  Illinois.62 

There  would  seem  to  be  no  exemptions  allowed  under 
this  statute,  except — 

(1)  Estates  which  may  be  valued  at  less  than  f  500.63 

(2)  Estates  which  may  be  valued  at  a  less  sum  than  $20,- 
000,  where  the  estate  passes  to  father,  mother,  husband, 
wife,  child,  brother,  sister,  wife  or  widow  of  the  son,  or 
the  husband  of  the  daughter,  or  any  child  or  children 
adopted  as  such  in  conformity  with  the  laws  of  the  state 
of  Illinois,  or  to  any  person  to  whom  deceased,  for  not  less 
than  10  years  prior  to  death,  stood  in  the  acknowledged 


6i  Laws  1891,  c.  25;   Laws  1S93,  p.  347. 

6  2  See  statute,  Appendix,  X.,  taken  from  Laws  of  Illinois  for  1895,. 
by  James  B.  Bradwell,  Chicago  Leg.  News,  1895,  p.  213.  See  Laws- 
Ill.  1S95,  Reg.  &  Ex.  Sess.  p.  301. 

63  Id.  §  1. 

(90) 


Ch.  3]  EXEMPTIONS.  §   34 

relation  of  a  parent,  or  to  any  lineal  descendant  born  in 
lawful  wedlock. 

(The  tax  is  to  be  levied  in  the  above  cases,  only  upon  the 
excess  of  $20,000  received  by  each  person,  at  the  rate  of  1  per 
cent.) 

(3)  Estates  of  $2,000  are  exempt,  but  the  excess  of  that 
amount  is  taxable  where  the  property  passes  to  or  for  the 
use  of  any  uncle,  aunt,  niece,  nephew,  or  any  lineal  descend- 
ant of  the  same,  where  the  tax  is  2  per  cent,  upon  such  ex- 
cess. 

(4)  In  all  other  cases  the  rate  is  as  follows  on  each  and 
every  $100  of  the  clear  market  value  of  all  property,  and  the 
same  rate  for  any  less  amount:  On  all  estates  of  $10,000 
and  less,  3  per  cent.;  on  all  estates  of  over  $10,000,  and  not 
exceeding  $20,000,  4  per  cent.;  on  all  estates  over  $20,000, 
and  not  exceeding  $50,000,  5  per  cent.;  and  on  all  estates 
over  $50,000,  6  per  cent.64 

(5)  Life  estates  or  estates  for  a  term  of  years  in  some 
cases  also  seem  to  be  exempt 65  where  the  property  shall  be 
bequeathed  to  mother,  father,  husband,  wife,  brother,  and 
sister,  the  widow  of  the  son,  or  a  lineal  descendant  during 
the  life  or  for  a  term  of  years,  or  remainder  to  the  collateral 
heirs  of  decedent,  or  to  stranger  in  blood,  or  to  body  politic 
or  corporate  at  their  decease,  or  on  the  expiration  of  such 
term.  "The  said  life  estate  or  estates  for  a  term  of  years 
shall  not  be  subject  to  any  tax,  and  the  property  so  passing 
shall  be  appraised  immediately  after  the  death;  *  *  * 
and  after  deducting  therefrom  the  value  of  said  life  estate, 
or  term  of  years,"  the  tax  transcribed  by  the  act  on  the  re- 
mainder shall  be  due  and  payable. 

64  Id.  §  1.  65  id.  §  2. 

(91) 


§   35  EXEMPTIONS.  [Ch.    3 

(p)  Minnesota. 

By  constitutional  amendment  passed  in  1S94,  provision  is 
made  for  an  inheritance  tax,60  but  no  law  lias  yet  been  en- 
acted. 


§  35.     Charitable,  Religious,  and  Other  Corporations 
and  Objects. 

Under  the  general  designation  of  charitable  and  religious 
corporations  and  objects  have  been  included,  as  claiming 
exemptions  under  these  acts,  churches,  cemeteries,  alms- 
houses, hospitals,  dispensaries,  orphan  asylums,  homes, 
houses  of  industry,  colleges,  public  libraries,  museums  of 
art  and  history,  societies  to  protect  animals,  benefit,  insur- 
ance, and  Christian  associations,  and  legacies  to  priests  for 
masses,  and  the  like.67 

In  England,  under  the  legacy  duty  act,  legacies  to  char- 
itable and  religious  corporations  were  at  first  taxable  with 
the  highest  rate  of  duty.68  Subsequently  they  were,  to  a 
limited  extent,  exempted  by  statute.69 

In  order  to  be  exempted,  it  was  held  that  the  legacy  for 
charitable  purposes  must  be  expressly  so  given  by  the  will 
itself,  and  not  be  the  subject  of  any  secret  trust.70  But  all 
such  legacies  seem  now  to  be  made  liable  to  succession  duty, 

so  See  chapter  11,  §  11. 

6  7  See  Laws  N.  Y.  1S90,  c.  553,  Appendix,  I.,  and  Laws  1892,  c.  399, 
§  1;  Laws  1S92,  c.  169,— by  which  the  list  of  such  institutions  entitled 
to  exemption  is  greatly  extended. 

es  in  re  Griffiths,  14  Mees  &  W.  510;  Ex  parte  Franklin,  3  Younge 
&  J.  544;  In  re  Parker,  4  Hurl.  &  N.  666;  In  re  Wilkinson,  1  Cromp. 
M.  &  R.  142. 

6»  56  Geo.  III.  c.  56;   5  &  6  Vict.  c.  82. 

ToCullen  v.  Attorney  General,  L.  R.  1  H.  L.  190.    But  see  In  re 
Farley's  Estate  (Surr.)  15  N.  Y.  St.  Rep.  727. 
(02) 


Ch.  3]  EXEMPTIONS.  §   35 

except  in  Ireland.71  A  bequest,  absolute  in  form,  to  execu- 
tors, pursuant  to  an  understanding  between  them  and  tes- 
tator, by  which  a  valid  parol  trust  was  created  in  favor  of 
certain  charitable  corporations  which  are  exempt  from  tax- 
ation, is  not  subject  to  the  legacy  tax.72 

And  where  the  testator  bequeathed  property  to  his  ex- 
ecutors to  be  disposed  of  as  directed  in  a  private  memoran- 
dum, which  directed  that  a  portion  of  the  property  should 
be  delivered  to  exempt  persons,  and  another  portion  to  non- 
exempt  persons,  held,  that  the  portion  going  to  the  latter 
was  taxable.73  Where  the  legatee,  a  church,  was  proved 
to  have  no  existence,  and  another  church  proved  itself  en- 
titled to  the  legacy,  it  was  held  taxable  against  the  latter.74 

In  the  state  of  New  York  it  has  never  been  the  general 
policy  wholly  to  exempt  the  real  or  personal  property  of 
churches  and  colleges  or  charitable  institutions  from  taxa- 
tion.75 Where  the  policy  of  complete  exemption  has  been 
adopted,  it  was  by  means  of  special  acts  applicable  to  par- 
ticular and  specified  corporations;  and  in  that  state  it  is 
said  there  is  no  general  act  exempting  the  personal  property 
of  such  76  colleges  or  churches,77  and  the  same  policy  has 

7i  16  &  17  Vict.  c.  51,  §  16;  44  Vict.  c.  12,  §  42;  Cullen  v.  Attorney 
General,  supra. 

72  in  re  Murphy's  Estate  (1S93)  25  N.  Y.  Supp.  106,  4  Misc.  Rep. 
230,  citing  In  re  Haven's  Estate  (Surr.)  2  N.  Y.  Supp.  639;  In  re  Far- 
ley's Estate,  supra. 

"  in  re  Swift  (Surr.)  16  N.  Y.  Supp.  193. 

74  In  re  Richards,  N.  Y.  Law  J.  Feb.  28,  1891. 

7  5  Catlin  v.  Trustees  of  Trinity  College,  113  N.  Y.  141,  20  N.  E.  864; 
Sherrill  v.  Christ  Church,  121  N.  Y.  701,  25  N.  E.  50;  In  re  Vassar, 
127  N.  Y.  8,  27  N.  E.  394;  In  re  Prime,  136  N.  Y.  356,  32  N.  E.  1091. 

7  6  For  general  exemption  statutes  of  New  York,  see  page  77.  supra. 

77  But  this  policy  was  widely  departed  from  by  Act  1S92,  c.  399,  §§ 
1,  2;  Id.  c.  169;  and  by  the  prior  act  of  1890  (chapter  553,  Appendix, 
I.),— which  seem  to  exempt  the  corporations  therein  named,  not  only 
from  the  collateral  inheritance  tax,  but  also  from  general  taxation. 
The   propriety  of  such  wholesale   exemption  is   questionable.    The 

(93) 


§   35  EXEMPTIONS.  [Ch.   3 

prevailed  in  other  states  where  these  acts  have  been  under 
construction;78  but  the  wisdom  of  expressly  exempting 
such  associations  or  corporations  as  are  purely  charitable 
from  the  collateral  tax  cannot  be  questioned,  if  for  no  other 
reason  than  that  such  institutions,  in  various  ways,  and 
principally  by  aiding,  educating,  and  sheltering  the  poor, 
sick,  and  destitute,  both  young  and  old,  to  a  great  extent 
relieve  the  state  from  the  burden  of  supporting  such  per- 
sons.79 

But  it  is  essential  that  the  basis  of  such  exemption 
should  clearly  appear,  either  from  the  act  itself  imposing 
the  collateral  tax,  or  in  some  act — general  or  special — re- 
ferred to  or  meant  to  be  included  in  the  exemption  words 
of  the  statute; 80  for,  without  such  express  exemption,  it  is 
clear  that  a  mere  exemption  of  the  corporation  or  associa- 
tion from  general  property  taxation  will  not  operate  to  re- 
lieve a  tax  imposed,  not  upon  property,  but  upon  the  succes- 
sion thereto.81 

act  has  been  held  not  retroactive.  In  re  Minturn's  Estate,  3  N. 
Y.  Law  J.  804  (July  18,  1890);  Sherrill  v.  Christ  Church,  supra, 
reversing  In  re  Van  Kleeck,  55  Hun,  472,  8  N.  Y.  Supp.  80G.  See  In 
re  Waller,  3  N.  Y.  Law  J.  SG8  (July  28,  1890).  These  acts  do  not  ap- 
ply to  foreign  corporations.    In  re  Prime,  136  N.  Y.  356,  32  N.  E.  1091. 

78  Miller  v.  Corn.,  27  Grat.  110;  Barringer  v.  Cowan,  2  Jones,  Eq. 
436;   Com.  v.  Herman,  16  Wkly.  Notes  Cas.  210-212. 

79  Association  for  Benefit  of  Colored  Orphans  v.  Mayor,  etc.,  of  New 
York,  104  N.  Y.  588,  12  N.  E.  279;  In  re  Prime,  136  N.  Y.  362,  32  N. 
E.  1091;  In  re  Curtis'  Estate  (Suit.)  7  N.  Y.  Supp.  207;  Home  of  the 
Friendless  v.  Rouse,  8  Wall.  436;  People  v.  Commissioners  of  Taxes 
and  Assessments,  36  Hun,  311;  In  re  Keech,  57  Hun,  588,  11  N.  Y. 
Supp.  265,— distinguishing  People  v.  Barber,  42  Hun,  27,  and  106  N.  Y. 
669,  13  N.  E.  936. 

so  Catlin  v.  Trustees  of  Trinity  College,  supra;  In  re  Prime,  supra; 
In  re  Vassar,  127  N.  Y.  1,  27  N.  E.  398;  In  re  Chittenden,  N.  Y.  Law 
J.  June  5,  1890;  In  re  Lenox's  Estate,  5S  Hun,  116,  11  N.  Y.  Supp. 
310. 

si  Miller  v.  Com.,  27  Grat.  110;  Barringer  v.  Cowan,  2  Jones,  Eq. 
(94) 


Clj.   3]  EXEMPTIONS.  §    35 

The  statutes  of  New  York  and  Connecticut  both  seem  to 
meet  this  requirement,  because  by  express  terms  the  tax  in 
New  York  is  imposed,  under  the  act  of  1887,  upon  property 
passing  to  any  "body  politic  or  corporation  *  *  *  other 
than  to  *  *  *  the  societies,  corporations,  and  institu- 
tions now  exempted  by  law  from  taxation."  82 

By  the  act  of  1892  83  all  "persons  or  corporations  not  ex- 
empt by  law  from  taxation  on  real  or  personal  property" 
are  taxed;  and,  by  section  2,  "any  property  heretofore  or 
hereafter  devised  or  bequeathed  to  any  person  who  is  a 
bishop  or  to  any  religious  corporation,  is  exempted."  84 

Some  of  the  main  difficulties  under  these  clauses  of  the 
statutes  appear  to  have  been  to  ascertain  precisely,  from 
the  general  language  used, — First,  the  particular  societies, 
institutions,  and  corporations  meant  to  be  exempted;85 
whether  the  language  is  restricted  to  those  that  are  merely 
charitable  or  religious  in  their  nature,  or  whether,  more 
liberally  speaking,  the  term  includes  other  corporations  not 
strictly   charitable,  but  public   in   nature; 86   and,   second, 

430;  Com.  v.  Herman,  16  Wkly.  Notes  Cas.  210-212.  See  In  re  Keith's 
Estate  (Surr.)  5  N.  Y.  Supp.  201;  In  re  Van  Kleeck,  55  Hun,  472,  S 
.N.  Y.  Supp.  806,  reversed  as  Sherrill  v.  Christ  Church,  121  N.  Y. 
701,  25  N.  E.  50.  See  Current  Comment  and  Legal  Miscellany  for 
March,  1S91  (Pa.)  p.  177. 

82  As  to  a  strict  construction  of  this  clause,  see  Catlin  v.  Trustees  of 
Trinity  College,  113  N.  Y.  133,  20  N.  E.  801,  affirming  49  Hun,  278, 
1  N.  Y.  Supp.  808;  People  v.  Commissioners  of  Taxes  and  Assess- 
ments, 19  Hun,  463,  404;  In  re  Miller,  5  Dem.  Sur.  132,  affirmed  45 
Hun,  244;  In  re  Herr's  Will,  55  Hun,  167,  7  N.  Y.  Supp.  852;  In  re 
Van  Kleeck,  55  Hun,  472,  8  N.  Y.  Supp.  806,  reversed  as  Sherrill  v. 
■Christ  Church,  supra.    See  Appendix,  I.  b,  Laws  1890,  c.  553. 

83  Laws  1S92,  c.  399,  §  1. 

8t  See,  also,  Laws  1892,  c.  169;  Roman  Catholic  Church  of  the 
Transfiguration  v.  Niles,  86  Hun,  221,  33  N.  Y.  Supp.  243. 

8  5  This  is,  perhaps,  obviated  by  chapter  553,  Laws  1S90,  and  Laws 
1892,  supra. 

86  A  public  library  is  exempt.    People  v.  Commissioners  of  Taxes 

(95) 


§   35  EXEMPTIONS.  [Ch.  3 

whether  the  words  "exempted  from  taxation"  mean  that 
the  societies  or  corporations  shall  be  exempted  from  all  tax- 
ation whatsoever,87  or  whether,  being  charitable  or  reli- 
gious associations  within  the  definition  of  the  law,  and 
having  their  property  exempt  either  by  special  or  general 
statute,  that  is  sufficient  to  bring  them  within  the  terms  of 
the  law. 

These  questions,  and  many  others,  have  been  only  partial- 
ly answered  by  the  numerous  decisions  in  the  courts  of  New 
York.  It  would,  perhaps,  have  been  more  satisfactory  had 
these  acts  expressly  stated  that  only  such  charitable,  reli- 
gious, and  purely  public  corporations  should  be  exempted 
from  the  collateral  tax  as  were  already,  or  should  be  there- 
after, expressly  exempted  under  general  or  special  statute 
from  taxation  upon  their  property.  This  objection  is  per- 
haps obviated  by  the  recent  act  of  1S90,  and  by  that  of 
1892.  In  this  respect,  while  the  statute  of  Connecticut  is 
more  specific  in  confining  exemptions  to  gifts  or  devises  for 
charitable  or  strictly  public  purposes,88  it  expressly  extends 
these  terms  so  as  to  include  educational,  benevolent,  ecclesi- 
astical, or  missionary  corporations,  associations,  or  objects. 

The  uniform  interpretation  placed  upon  the  language  of 
the  Xew  York  statute  in  force  prior  to  the  act  of  1890  tend- 
ed very  much  to  restrict  its  meaning  to  include  merely  such 
institutions  and  corporations  as  were  purely  charitable  or 
public,  and  exempt,  as  such,  from  a  property  tax,  either  by 
general  statute  89  or  by  special  act.     If,  finally,  neither  of 

&  Assessments,  11  Hun,  505;  In  re  Herr's  Will,  55  Hun,  1G7,  7  N.  Y. 
Supp.  852;  In  re  Lenox's  Estate  (Suit.)  9  N.  Y.  Supp.  895.  But  see 
In  re  Chittenden,  N.  Y.  Law  J.  June  5,  1890. 

87  This  was  held  not  necessary  in  Re  Vassar,  127  N.  Y.  8,  27  N.  E. 
394. 

88  Appendix,  VII.  §  17. 

89  2  Rev.  St  (Banks'  8th  Ed.)  c.  13,  p.  1084. 
(96) 


Ch.   3]  EXEMPTIONS.  §   35 

these  sources  afforded  any  ground  for  exemption,  the  claim 
thereto  was  disallowed.90 

Claims  for  exemption  have  therefore  been  made  upon  the 
theory  —  First,  that  the  claimants  were,  as  colleges  and 
churches,  and  museums  of  art  and  history,  exempt  under 
general  statutes  as  "incorporated  companies";91  second,  up- 
on the  ground  that  hospitals,  dispensaries,  asylums,92  ceme- 
teries, homes,  and  the  like  institutions  were  exempt  under 
general  or  special  statutes,  as  almshouses,  homes  for  sea- 
men, poorhouses,  buildings  for  public  worship,93  public  libra- 
ries, and  the  like; 94  and,  third,  upon  various  miscellaneous 

so  Catlin  v.  Trustees  of  Trinity  College,  113  N.  Y.  138,  20  N.  E. 
864.     Distinguished  in  Re  Vassar,  127  N.  Y.  8,  27  N.  E.  397. 

si  Catlin  v.  Trustees  of  Trinity  College,  supra;  People  v.  Coleman, 
112  N.  Y.  565,  20  N.  E.  389.  See  Catlin  v.  Domestic  &  Foreign  Mis- 
sionary of  P.  E.  Church,  113  N.  Y.  625,  20  N.  E.  867;  Sherrill  v.  Christ 
Church,  121  N.  Y.  701,  25  N.  E.  50;  In  re  Vanclerbilt's  Estate  (Surr.) 
10  N.  Y.  Supp.  239;  In  re  Kennedy,  N.  Y.  Law  J.  April  25,  1890. 
They  are  now  exempt,  it  seems,  by  Laws  1S90,  c.  553.  See  Ap- 
pendix, V. 

92  See  Laws  1890,  supra. 

93  See  Laws  1S90,  supra. 

9*  Estate  Ellen  Thompson,  N.  Y.  Daily  Reg.  Nov.  14,  1S89;  In  re 
Keech's  Estate  (Surr.)  7  N.  Y.  Supp.  331,  affirmed  as  In  re  Keech's 
Estate,  57  Hun,  588,  11  N.  Y.  Supp.  265;  In  re  Vanderbilt's  Estate 
(Surr.)  10  N.  Y.  Supp.  239;  In  re  Kennedy,  N.  Y.  Law  J.  April  25, 
1890;  In  re  Chittenden,  Id.  June  5,  1890;  In  re  Quinn,  N.  Y.  Daily 
Reg.  July  24,  1S89;  In  re  Dewey's  Estate,  N.  Y.  Law  J.  Oct.  21,  1SS9; 
In  re  Curtis'  Estate  (Surr.)  7  N.  Y.  Supp.  201;  In  re  Miller,  5  Dem. 
Sur.  132,  affirmed  45  Hun,  244;  In  re  Lenox  (Surr.)  9  N.  Y.  Supp.  895; 
In  re  Herr's  Will  (Surr.)  5  N.  Y.  Supp.  48,  reversed  55  Hun,  167,  7  N. 
Y.  Supp.  852;  Church  Charity  Foundation  v.  People,  6  Dem.  Sur.  154; 
s.  c,  In  re  Hunter,  11  N.  Y.  St.  Rep.  704;  In  re  Hochster's  Estate, 
N.  Y.  Law  J.  Jan.  22, 1S90;  Association  for  Benefit  of  Colored  Orphans 
v.  Mayor,  etc.,  of  New  York,  104  N.  Y.  588,  12  N.  E.  279;  In  re  Van 
Kleeck,  55  Hun,  472,  8  N.  Y.  Supp.  806,  reversed  as  Sherrill  v.  Christ 
Church,  121  N.  Y.  701,  25  N.  E.  50;  In  re  Minturn,  N.  Y.  Law  J.  July 
LAW  INHER. 7  (97) 


§   35  EXEMPTIONS.  [Ch.   3 

grounds,  as  that  the  legacies  were  for  masses  and  similar 
purposes. 

The  leading  case  in  New  York,  under  the  first  proposi- 
tion, is  that  of  Catlin  v.  Trustees  of  Trinity  College,95  where 
decedent  had  bequeathed  legacies  to  two  institutions, — one 
a  church,  and  the  other  a  college, — both  of  which  claimed 
exemption  upon  the  general  ground  that  they  were  includ- 
ed within  the  term  "incorporated  companies,"  as  defined  by 
general  law.96 

But  in  defining  the  general  policy  of  the  state  as  being 
against  the  complete  exemption  of  colleges,  churches,  char- 
itable, and  religious  institutions  from  taxation,  unless  ex- 
empted by  general  law  or  special  charter,97  it  was  held  that 
the  words  "incorporated  companies"  did  not  include  such 
religious,  literary,  or  charitable  institutions,98  but  referred 
to  certain  business  corporations,  and,  therefore,  that  the 
claimants,  not  showing  any  general  or  special  statutory  ex- 
emption, were  not  within  the  meaning  of  the  term  "ex- 
empted by  law  from  taxation,"  under  the  act  of  18S5.99 

2,  1890;  In  re  Noyes,  Id.  July  5,  1890;'  In  re  Vassar,  127  N.  T. 
8,  27  N.  E.  394.  This  case  overrules,  in  some  respects,  In  re  Vander- 
bilt's  Estate,  In  re  Keech,  and  In  re  Lenox,  supra. 

6  5  H3  N.  Y.  137,  20  N.  E.  S64,  affirming  49  Hun,  27S,  1  N.  Y.  Supp. 
808.  See  Catlin  v.  Domestic  &  Foreign  Missionary  Soc.  of  P.  E. 
Church,  113  N.  Y.  625,  20  N.  E.  867.  This  doctrine  has  recently  been 
reiterated  by  the  same  court  in  Sherrill  v.  Christ  Church,  supra. 

»0  See  supra,  p.  79,  note  23;  2  Rev.  St.  (Banks'  8th  Ed.)  p.  1084, 
c.  13,  §  7. 

97  See  In  re  Vanderbilt's  Estate  (Surr.)  10  N.  Y.  Supp.  239;  In  re 
Chittenden,  supra;  In  re  Lenox's  Estate,  58  Hun,  116,  11  N.  Y.  Supp. 
310. 

as  Now  exempt  by  Laws  1S92,  c.  399,  §  2;  Laws  1S92,  c.  1G9;  and 
Laws  1890,  c.  553,— Appendix,  I.  b,  c,  e. 

99  The  words  "incorporated  company,"  used  in  Rev.  St.  subd.  7, 
supra,  p.  79,  refer  to  certain  moneyed  or  stock  corporations  not  de- 
riving any  income  or  profit  from  capital  or  otherwise.  They  were 
applied  merely  to  banking  or  loan  institutions  and  insurance  com- 
panies. 1  Rev.  St.  598,  §  51;  2  Potter,  Corp.  p.  518,  §  435,  and  cases 
(98) 


Ch.  3]  EXEMPTIONS.  §    35 

This  was  the  extent  of  the  decision  made,  the  court  say- 
ing: "We  know  of  no  general  statute  exempting  the  per- 
sonal property  of  religious  societies  or  colleges  from  taxa- 
tion." 

A  hospital  whose  real  and  personal  property  were  exempt 
from  taxation  by  special  charter  was  held  exempt  from  this 
tax,  also  as  an  almshouse.  The  same  rule  was  applied  to 
a  college  whose  property  was  specifically  exempted.100 

It  seems  that  a  corporation  established  as  an  "institu- 
tion of  learning  for  the  scientific,  classical,  and  theological 
education  of  colored  youth  of  the  male  sex"  is  not  a  reli- 
gious corporation  within  the  meaning  of  the  act  of  1892.101 

Museums  of  art  and  history  are  not  within  the  term  "in- 
corporated companies";102  and  it  seems>  whether  they  are 
so  or  not,  if  they  derive  an  income  from  capital  or  other- 
wise, they  are  liable  to  taxation.103 

Columbia  College  is  exempt  from  the  legacy  tax  under 
the  act  of  1S90,  notwithstanding,  by  special  charter,  it  may 
own  property  exceeding  three  millions  of  dollars;104  and 
the  public  library  in  the  city  of  Brooklyn  is  also  exempt.105 

Boards  of  foreign  missions,  not  exempted  by  general  law 

cited;  Catlin  v.  Trustees  of  Trinity  College,  113  N.  Y.  137,  20  N.  B. 
864;  In  re  Vassar,  127  N.  Y.  8,  27  N.  E.  394.  And  see  Utica  Cotton 
Manuf'g  Co.  v.  Supervisors  of  Oneida,  1  Barb.  Ch.  432;  People  v. 
Supervisors  of  New  York,  18  Wend.  605;  People  v.  Board  of  Sup'rs 
of  Niagara  Co.,  4  Hill,  20,  affirmed  7  Hill,  504,  518;  People  v.  Board 
of  Sup'rs  of  New  York,  16  N.  Y.  438;  People  v.  Cassity,  46  N.  Y. 
53;  In  re  Vanderbilt's  Estate  (Surr.)  10  N.  Y.  Supp.  239.  As  to  what 
does  not  constitute  "income"  as  regards  hospitals,  see  People  v.  Purdy, 
58  Hun,  386,  12  N.  Y.  Supp.  307. 

ioo  in  re  Vassar,  127  N.  Y.  8,  27  N.  E.  396-398. 

ioi  Chapter  399,  §  2;  In  re  Fayerweather  (Surr.)  30  N.  Y.  Supp.  273. 

i°2  In  re  Vanderbilt's  Estate,  supra. 

103  in  re  Vanderbilt's  Estate,  supra.  See,  also,  In  re  Chittenden, 
N.  Y.  Law  J.  June  5,  1890;   Laws  1890,  c.  553;  Appendix,  I.  b. 

104  Laws  1S90,  c.  553;   In  re  Da  Costa,  N.  Y.  Law  J.  March  12,  1891. 
los  Laws  N.  Y.  1892,  c.  441,  §  9. 

(99) 


§    35  EXEMPTIONS.  [Ch.   $ 

or  special  statute,  are  liable  to  tax,  and  especially  when 
they  are  foreign  corporations.106 

And  in  North  Carolina  and  Virginia  bequests  to  colleges 
and  churches  have  been  held  liable  to  this  tax  under  stat- 
utes which  did  not  exempt  corporations,  notwithstanding 
that  they  were  otherwise  expressly  relieved  from  general 
taxation.107 

While  in  Pennsylvania,  under  general  statutes,  it  has 
been  held  that  a  college  founded  and  maintained  by  dona- 
tions, open  to  all  sects  and  to  visitation  by  the  state,  and 
making  no  profit,  although  taking  a  tuition  fee,  is  a  public 
charity,  and  as  such  exempt.108 

This  result,  however,  was  not  reached  under  the  collat- 
eral inheritance  tax;  and  public  charities  are  not.  exempt 
from  the  statutes  in  that  state.109 

But  real  estate  conveyed  gratuitously  to  a  charitable 
corporation  chartered  to  give  free  instruction  in  the  natural 
sciences,  and  held  and  rented  by  it  as  a  source  of  income 
to  carry  out  its  purpose,  is  neither  a  "gift,"  "bequest,"  nor 
"endowment,"  within  the  meaning  of  a  statute  exempting 
all  gifts,  bequests,  or  endowments  belonging  to  it  from  tax- 
ation.110 

106  See  In  re  Prime,  136  N.  Y.  356,  32  N.  E.  1001;  In  re  Lenox's 
Estate,  58  Hun,  116,  11  N.  Y.  Supp.  310,  311. 

107  Barringer  v.  Cowan,  2  Jones,  Eq.  436;  Miller  v.  Com.,  27  Grat. 
110;   Com.  v.  Herman,  16  Wkly.  Notes  Cas.  210,  212. 

108  Northampton  College  v.  Lafayette  College,  46  Leg.  Int.  423. 

109  See  valuable  note  by  John  M.  Gest,  Esq.,  of  Philadelphia  bar,  in 
Current  Comment  and  Legal  Miscellany  for  March  15,  1891,  p.  117; 
Philadelphia  v.  Women's  Christian  Ass'n  (1889)  125  Pa.  St.  572,  17 
Atl.  475;  Philadelphia  v.  Pennsylvania  Hospital,  47  Leg.  Int.  70; 
Pennsylvania  cases  commented  upon  in  Re  Vassar,  127  N.  Y.  8,  27  N. 
E.  397,  398. 

no  Wagner  Institute  v.  City  of  Philadelphia,  9  Cent.  Rep.  617.    And 
see  19  Abb.  N.  C.  231,  for  note  on  cases  as  to  exemption  of  religious 
corporations  from  taxation. 
(100) 


Ch.  3]  EXEMPTIONS.  §   35 

Under  the  second  proposition,  claims  for  exemption  have 
"been  made  by  various  institutions  upon  the  ground  that 
they  were  almshouses,  poorhouses,  houses  of  industry, 
homes  for  seamen,  cemeteries,  schoolhouses,  houses  for  pub- 
lic worship,  public  libraries,  and  the  like,  within  the  pro- 
visions of  general  or  special  statutes.111 

While  the  cases  upon  this  subject  are  not  altogether  har- 
monious, the  question,  however,  as  to  what  constitutes  an 
"almshouse"  under  the  general  statute,  has  been  before  the 
court  of  appeals  of  New  York;  and  a  private  institution 
engaged  in  aiding  orphans,  giving  them  clothing  and  educa- 
tion gratuitously,  was  defined  to  be  an  almshouse,  as  per- 
forming a  work  of  pure  charity,  and  was  consequently  held 
exempt  from  taxation.112 

Advantage  has  been  taken  of  this  doctrine,  and  in  nu- 
merous cases'  arising  under  the  inheritance  tax  laws,  where 
the  claimant  could  bring  itself  within  the  principles  laid 
down  in  this  case,  it  has  been  held  to  be  one  of  the  societies, 
etc.,  "exempted  by  law  from  taxation."  113 

Hence  all  societies  are  exempt,  as  almshouses,  whose  ob- 
ject is  to  support,  maintain,  and  educate  orphans  and  half 
orphans  without  charge; 114  and,  so  long  as  a  society  and 
hospital  wholly  dependent  upon  voluntary  contributions 
comes  within  the  definition  of  an  almshouse,  it  is  not  neces- 
sary that  it  should  be  specially  exempt  from  taxation  by  spe- 

111  See  New  York  Rev.  St.  (Banks'  8th  Ed.)  c.  13,  §  4. 

112  Association  for  Benefit  of  Colored  Orphans  v.  Mayor,  etc.,  of 
New  York,  104  N.  Y.  588,  589,  12  N.  E.  279;  In  re  Keech,  57  Hun, 
588,  11  N.  Y.  Supp.  265;  In  re  Forrester,  5S  Hun,  611,  12  N.  Y.  Supp. 
774. 

ii3  For  a  list  of  societies  and  corporations  in  New  York  City  held 
liable  to  this  tax,  see  In  re  Vanderbilt's  Estate  (Suit.)  10  N.  Y.  Supp. 
239.    See  In  re  Chittenden,  N.  Y.  Law  J.  June  5,  1890. 

H4  in  re  Quinn's  Estate,  N.  Y.  Daily  Reg.  July  24,  1889;  In  re  Mc- 
Pherson,  5  Dem.  Sur.  166-169. 

(101) 


§    35  EXEMPTIONS.  [Ch.    S 

cial  law.  Such  an  institution  is  a  charitable  institution.115 
In  this  case  the  surrogate  (Coffin,  S.)  defined  a  hospital, 
in  its  modern  sense,  to  be  a  building,  founded  through  char- 
ity, where  the  sick  and  disabled  may  be  treated  solely  at 
their  own  expense,  or  at  the  sole  expense  of  the  corpora- 
tion, which  receives  only  indigent  patients,  and  has  thus 
all  the  attributes  of  an  almshouse.  In  either  sense  he  held 
such  an  institution  is  a  charitable  institution.  Later  cases, 
however,  hold  that,  wherever  there  is  a  charge  made  to  the 
patient,  it  is  not  an  almshouse.116 

So  a  corporation  engaged  in  maintaining  a  house  for  the 
support  of  indigent  and  aged  persons  and  of  destitute  chil- 
dren, and  hospitals  and  dispensaries  for  the  relief  of  the 
infirm,  sick,  and  needy,  which  is  maintained  by  voluntary 
gifts,  and  which  has  no  capital  stock,  and  conducts  no  busi- 
ness, is  exempt  as  being  in  effect  an  almshouse,  poorhouse, 
or  schoolhouse  within  the  general  exemption  statutes.117 

And,  where  the  institution  dispenses  its  benefits  without 
any  charge  whatever,  it  seems  the  fact  that  it  has  no  house 
where  the  poor  are  lodged  does  not  take  it  out  of  the  alms- 
house class  if  it  provides  the  means  for  lodging.118 

us  In  re  Curtis'  Estate  (Surr.)  7  N.  Y.  Supp.  207,  citing  Association 
for  Benefit  of  Colored  Orphans  v.  Mayor,  etc.,  of  New  York,  104  N. 
Y.  5S9,  12  N.  E.  279;  People  v.  Commissioners  of  Taxes,  36  Hun,  311 ; 
New  York  Infant  Asylum  v.  Supervisors  of  Westchester  Co.,  31  Hun, 
116,  and  reviewing  Catlin  v.  Trustees,  113  N.  Y.  137,  20  N.  E.  864, 
affirming  49  Hun,  278,  1  N.  Y.  Supp.  808.  See,  also,  In  re  Miller,  5 
Dem.  Sur.  132;  In  re  Hochster's  Estate,  N.  Y.  Law  J.  Jan.  22,  1890. 
Contra,  In  re  Herr's  Will  (Surr.)  5  N.  Y.  Supp.  48,  reversed  in  55  Hun, 
167,  7  N.  Y.  Supp.  852;  In  re  Neale's  Estate  (1S90)  57  Hun,  591,  10  N. 
Y.  Supp.  713. 

ne  See  In  re  Keech,  57  Hun,  588,  11  N.  Y.  Supp.  265,  and  cases 
post,  p.  108,  note. 

n7  Church  Charity  Foundation  v.  People,  6  Dem.  Sur.  154;  In  re 
Hunter,  11  N.  Y.  St.  Rep.  704. 

us  In  re  Lenox's  Estate  (Surr.)  9  N.  Y.  Supp.  S95.  But  this  would 
(102) 


Ch.  3]  EXEMPTIONS.  §   35 

Where  a  charitable  institution  is  originally  exempt  un- 
der general  law  as  an  almshouse,  but  subsequently  a  spe- 
cial statute  is  passed  exempting  its  real  estate  solely,  it 
becomes  liable  to  the  legacy  tax,  although  as  an  almshouse 
it  might  have  been  exempt;  the  court  adopting  the  rule 
"that  where  there  has  been  a  general  enactment  covering 
the  subject  in  general,  in  terms  which  include  the  particu- 
lar case,  and  there  is  a  subsequent  enactment  which  makes 
a  rule  for  that  particular,  that  the  latter  shall  be  held  to 
be  all  that  the  legislature  at  last  meant  for  the  regulation 
of  that  case."  119 

On  the  other  hand,  it  has  been  asserted  that  notwith- 
standing certain  societies,  such  as  homes,  dispensaries,  and 
hospitals,  are  "almshouses"  within  the  general  exemption 
statutes,  as  such  exemption  merely  applies  to  the  property 
actually  occupied  by  them,  and  the  personal  property  actu- 
ally contained  therein,  to  entitle  them  to  exemption  under 
the  inheritance  act  it  is  still  necessary  that  there  should  be 
a  total  and  absolute  exemption  from  general  taxation  of  all 
property  which  they  have  or  could  have  "under  any  and 
every  possible  circumstance  or  condition,"  and  that,  if  such 
societies  can  hold  any  property  which  would  be  liable  to 
taxation,  then  they  are  liable  under  the  inheritance  act.120 

If  it  were  necessary  that  such  charitable  association,  in 

seem  to  conflict  with  the  definition  of  an  almshouse,  i.  e.  a  house  ap- 
propriated to  the  poor,— for  the  use  of  the  poor,— where  they  are  to 
have  a  place  of  refuge,  and  to  be  clothed,  etc.  People  v.  Commis- 
sioners of  Taxes,  36  Hun,  311;  Association  for  Benefit  of  Colored 
Orphans  v.  Mayor,  etc.,  of  New  York,  104  N.  Y.  5S9,  12  N.  E.  279; 
In  re  Keech,  supra. 

us  In  re  Forrester,  58  Hun,  611,  12  N.  Y.  Supp.  774,  citing  Petro- 
leum Co.  v.  Lacey,  63  N.  Y.  426. 

i2o  In  re  Herr's  Will  (Suit.)  5  N.  Y.  Supp.  48,  reversed  in  55  Hun, 
167,  7  N.  Y.  Supp.  852.  Contra,  In  re  Curtis'  Estate  (Surr.)  7  N.  Y. 
Supp.  207;  In  re  Keith's  Estate  (Surr.)  5  N.  Y.  Supp.  201;  In  re 
Hochster's  Estate,  N.  Y.  Law  J.  Jan.  22,  1S90,  and  cases  cited  supra. 

(103) 


§   35  EXEMPTIONS.  [Ch.  3 

order  to  come  within  the  exemption  clause,  should  show 
that  it  was  exempt  from  all  taxation  whatever  under  every 
possible  circumstance  and  condition,  few  corporations,  even 
those  purely  charitable,  would  or  could  ever  be  allowed  ex- 
emption under  these  acts.  The  result  of  such  a  condition 
of  the  law  would  be  in  effect  to  nullify  the  express  exemp- 
tion which  is  extended  to  all  societies,  institutions,  and  cor- 
porations "now  exempted  by  law  from  taxation."  121 

Hence,  it  would  seem  that  the  act  does  not  mean  that 
such  societies  shall  be  exempt  from  all  possible  taxation. 
This  the  legislature  could  hardly  have  intended,  because  it 
is  well  settled  that  even  though  charitable  corporations  are, 
by  general  statute,  relieved  in  most  positive  and  general 
language  from  all  taxation,  this  does  not  in  every  case  re- 
lieve them  from  certain  special  taxes;  and  such  the  col- 
lateral inheritance  tax  of  this  state  has  been  decided  to 
be.122 

But  it  would  seem  that  the  law  is  fully  complied  with 
when  it  has  been  satisfactorily  shown  that  the  claimant  is 
a  charitable  institution,  exacting  no  fee  or  reward,  and 
purely  such  under  either  special  or  general  law,  as  has  been 
held  in  regard  to  an  almshouse,123  and  is  generally  exempt 
from  taxation. 

These  views  have  been  fully  sustained  by  the  court  of 
appeals,124  where  Haight,  J.,  said:     "The  court  below  ap- 

121  In  re  Vassar,  127  N.  Y.  8,  27  N.  E.  394. 

122  See  In  re  McPherson,  104  N.  Y.  317,  10  N.  E.  685;  In  re  Enston's 
Will,  113  N.  Y.  174,  21  N.  E.  S7;  Cooley,  Tax'n  (2d  Ed.)  200,  207,  and 
cases  cited,  page  207,  note  3;  Barringer  v.  Cowan,  2  Jones,  Eq.  436; 
Miller  v.  Com.,  27  Grat.  110. 

123  Association  for  Benefit  of  Colored  Orphans  v.  Mayor,  etc.,  of 
New  York,  104  N.  Y.  5S9,  12  N.  E.  279,  and  cases  supra;  In  re  Herr's- 
Will,  55  Hun,  167,  7  N.  Y.  Supp.  852,  reversing  5  N.  Y.  Supp.  4S;  In 
re  Miller,  5  Dem.  Sur.  132. 

124  In  re  Vassar,  127  N.  Y.  10,  27  N.  E.  396,  reversing  58  Hun,  37S, 
12  N.  Y.  Supp.  203,  and  overruling  In  re  Keech  (Suit.)  7  N.  Y.  Supp. 

(104) 


Ch.  3]  EXEMPTIONS.  §   35 

pears  to  have  been  of  the  opinion  that  the  provision  of  the 
act  excepting  the  societies,  corporations,  and  institutions 
now  exempted  by  law  from  taxation  referred  only  to  those 
bodies  which  enjoy  complete  immunity  from  taxation  as 
to  all  property  which  they  now  have  or  of  which  they  may 
at  any  time  become  possessed,  even  in  excess  of  the  stat- 
utory limit.125  Such  a  construction  of  the  statute  would 
practically  nullify  the  provision,  and  render  exemptions 
from  taxation  contained  therein  of  no  avail.  It  could  sub- 
ject every,  or  nearly  every,  charitable  institution  in  the  land 
to  the  payment  of  the  tax." 

A  home  for  the  aged  which  under  its  by-laws  charges  an 
admission  fee  is  not  therefore  subject  to  collateral  tax,  not- 
withstanding it  fails,  by  reason  of  such  charge,  to  come 
within  the  almshouse  class,  where  there  is  no  element  of 
profit  or  private  gain  by  the  corporation.126 

A  cemetery  declared  by  law  to  be  exempt  from  all  public 
tax,  so  long  as  the  same  shall  remain  dedicated  to  the  pur- 
poses of  a  cemetery,  is  exempt; 127  and  a  bequest  in  trust 
to  pay  to  a  church  a  certain  sum  towards  the  building  of 
a  new  church,  or  the  renovation  of  the  present  one,  is  ex- 
empt as  a  building  of  public  worship,  although  the  new 
church  was  built  and  paid  for  through  a  loan  in  anticipa- 
tion of  the  payment  of  the  legacy  by  the  executors.  If,  how- 
ever, the  gift  had  been  an  absolute  one,  and  not  for  build- 
ing the  new  church,  it  seems  the  legacy  would  have  been 

331,  and  57  Hun,  588,  11  N.  Y.  Supp.  265;  In  re  Lenox's  Estate  (Surr.) 
9  N.  Y.  Supp.  895;  In  re  Vanderbilt's  Estate  (Sun-.)  10  N.  Y.  Supp.  239. 

125  See  Appendix,  I.  b,  Laws  N.  Y.  1890,  c.  553. 

126  in  re  Vassar,  supra,  citing  Association  for  Benefit  of  Colored 
Orphans  v.  Mayor,  etc.,  of  New  York,  104  N.  Y.  581,  12  N.  E.  279 
Philadelphia  v.  Women's  Christian  Ass'n,  125  Pa.  St.  572,  17  Atl.  475 
Northampton  Co.  v.  Lafayette  College,  128  Pa.  St.  132,  18  Atl.  516 
Seminary  v.  Cramer,  98  N.  Y.  121. 

127  in  re  Dewey's  Estate,  N.  Y.  Law  J.  Oct.  21,  1889 

(105) 


§   35  EXEMPTIONS.  [Ch.  3 

liable.128  This  view  of  the  law,  however,  has  recently  been 
rejected  by  the  court  of  appeals,  and  the  legacy  held  liable 
to  the  tax,120  upon  the  ground  that  it  was  simply  a  legacy 
of  money. 

So,  under  the  English  law,  where  money  is  bequeathed, 
whether  to  those  who  administer  a  charity,  or  who  admin- 
ister funds  for  any  public  purpose,  ecclesiastical  or  other- 
wise, it  is  subject  to  legacy  duty,  inasmuch  as  it  is  consid- 
ered a  legacy  for  the  benefit  of  strangers  in  blood  to  the 
testator.130 

Religious  corporations  in  New  York  are  now  expressly 
exempted  from  this  tax.131  This  is  held,  however,  not  to 
exempt  foreign  religious  corporations.132  So  a  society  for 
the  improvement  of  the  moral  condition  of  seamen  is  ex- 
empt under  general  law.133 

But  the  mere  fact  that  a  society  or  corporation  not  ex- 
empted by  special  charter  or  general  law  is  exempted  upon 
a  portion  of  its  property  is  of  no  avail; 134  and  a  bequest  to 
a  missionary  society  known  as  "The  Paulist  Fathers,"  which 
could  not  show  special  or  general  exemption,  was  held 
liable.135 

The  board  of  foreign  missions  is  not  exempt  from  this 

128  in  re  Van  Kleeck,  55  Hun,  472,  8  N.  Y.  Supp.  806,  citing  Catlin 
v.  Trustees  of  Trinity  College,  113  N.  Y.  333,  20  N.  E.  864.  Contra, 
In  re  Parker,  5  Jur.  (N.  S.)  1058. 

129  Sherrill  v.  Christ  Church,  121  N.  Y.  701,  25  N.  E.  50,  reversing 
In  re  Van  Kleeck,  supra. 

130  In  re  Parker,  supra. 

i3i  Laws  1890,  c.  553;  Laws  1892,  c.  399,  §  2;  Id.  c.  169.  Appen- 
dix, I. 

132  See  cases  section  36. 

133  in  re  Vanderbilt's  Estate  (Surr.)  10  N.  Y.  Supp.  239. 

134  in  re  Keith's  Estate  (Surr.)  5  N.  Y.  Supp.  201;  In  re  Vanderbilt's 
Estate,  supra;  In  re  Kennedy,  3  N.  Y.  Law  J.  (April  25,  1890);  In  re 
Minturn's  Estate,  Id.  804  (July  2,  1890). 

135  in  re  Kavanagh's  Estate  (Surr.)  6  N.  Y.  Supp.  669. 

(100) 


Ch.  3]  EXEMPTIONS.  §   35 

tax  under  the  acts  of  1885  or  under  that  of  1890  (chapter 
553).130 

So  a  charitable  institution,137  a  home  for  the  aged,  ex- 
acting an  admission  fee,  and  requiring  an  applicant  to 
make  a  will  leaving  all  property  to  it,  is  not  an  almshouse 
under  the  general  law;138  and  an  institution  requiring  pu- 
pils to  pay,  if  they  are  able  so  to  do,  is  not,  it  seems,  a  pure- 
ly charitable  institution,  within  the  meaning  of  an  alms- 
house,139 the  theory  being  that  any  charge,  however  small, 
takes  the  claimant  out  of  the  almshouse  class.  In  one  case 
this  rule  was  carried  to  the  extent  of  imposing  the  tax  upon 
an  institution  which  made  a  paltry  charge  for  taking  care 
of  poor  infants.140 

The  exemption  from  taxation  of  any  building  used  for 
public  worship  141  does  not  constitute  a  general  exemption 
of  a  church  from  taxation,  within  the  meaning  of  the  ex- 
ception in  the  collateral  tax  act  "of  corporations  and  insti- 
tutions now  exempt  by  law  from  taxation."  142 

Recently  the  court  of  appeals  of  New  York  has  been 

136  in  re  Prime,  136  N.  Y.  347,  32  N.  E.  1091;  In  re  Tuigg's  Estate 
•(Suit.)  15  N.  Y.  Supp.  548. 

137  Now  exempt  by  Laws  N.  Y.  1S90,  c.  553.    Appendix,  I.  b. 

13  8  in  re  Lenox's  Estate  (Surr.)  9  N.  Y.  Supp.  S95;  In  re  Keeeh's 
Estate  (Suit.)  7  N.  Y.  Supp.  331,  affirmed  in  57  Hun,  5SS.  11  N.  Y. 
Supp.  2G5;  In  re  Thompson's  Estate,  N.  Y.  Daily  Reg.  Nov.  14,  1889. 
But  see  In  re  Vassar  (1891)  127  N.  Y.  8,  27  N.  E.  394. 

139  In  re  Hochster's  Estate,  2  N.  Y.  Law  J.  19S1  (Jan.  22,  1S90). 
And  see  Congregation  Kal  Israel  Auschi  Poland  v.  City  of  New 
York  (Sup.)  1  N.  Y.  Supp.  35;  People  v.  Barber,  42  Hun,  27;  In  re 
Vanderbilt's  Estate  (Surr.)  10  N.  Y.  Supp.  239.  See,  also,  In  re  Min- 
tum's  Estate,  supra;  In  re  Noyes'  Estate,  3  N.  Y.  Law  J.  914  (July  5, 
1890) ;  In  re  Keeeh's  Estate,  supra, 

140  in  re  Vanderbilt's  Estate,  supra;  In  re  Lenox's  Estate,  supra; 
In  re  Chittenden,  3  N.  Y.  Law  J.  501  (June  5,  1890).  These  cases  are 
now  all  overruled  in  Re  Vassar,  supra. 

i4i  1  Rev.  St.  N.  Y.  p.  388,  §  4,  subsec.  3. 

142  Sherrill  v.  Christ  Church  (1890)  121  N.  Y.  701,  25  N.  E.  50,  re- 

(107) 


§    35  EXEMPTIONS.  [Ch.   3 

called  upon  to  determine  the  liability  of  hospitals,  colleges, 
and  homes  where  a  charge  or  admission  fee  is  made  to  the 
applicants  or  inmates.143 

In  the  Vassar  Case  the  corporation  was  organized  to  car- 
ry on  a  home  for  aged,  indigent  Protestant  men  who  were 
unable  to  support  themselves.  The  by-laws,  however,  pro- 
vided that  the  applicant  should  pay  certain  admission  fees, 
running  from  $100  to  $250,  and  should  further  transfer  to 
the  home  any  property  he  should  have.  The  lower  courts 
held,  following  a  line  of  cases  based  upon  the  Orphan  Asy- 
lum Case,144  that  this  particular  institution  was  liable  to 
the  collateral  inheritance  tax.  In  reversing  this  decision, 
however,  the  court  said: 

"Corporations  are  given  the  power  to  make  by-laws  not 
inconsistent  with  any  existing  law  for  the  management  of 
their  property,  the  regulation  of  their  affairs,  etc.145  The 
home  is  not  exempt  under  the  provisions  of  any  special  act. 
If  exempt  it  is  because  of  its  being  an  almshouse,  within  the 
provisions  of  the  Revised  Statutes  to  which  we  have  al- 
ready referred.  It  would  be  an  almshouse,  were  it  not  for 
the  fact  that  under  its  by-laws  an  entrance  fee  is  charged  • 
to  those  seeking  its  benefits.146 

"It  is  claimed  that  the  by-laws  referred  to  are  unauthor- 
ized, and  inconsistent  with  the  provisions  of  the  charter; 
that  the  business  and  object  was  the  support  of  aged  and 
indigent  Protestant  men  who  were  unable  to  support  them- 
selves.    However  that  may  be,  we  are  of  the  opinion  that 

versing  55  Hun,  472,  8  N.  Y.  Supp.  806.    See  In  re  Forrester  (Sup.) 
12  N.  Y.  Supp.  774. 

143  in  re  Vassar,  127  N.  Y.  8,  27  N.  E.  394,  reversing  (Sup.)  12  N.  Y. 
Supp,  203. 

144  104  N.  Y.  581,  12  N.  E.  279. 

145  2  Rev.  St.  (7th  Ed.)  1531,  §  6. 

146  Association  for  Benefit  of  Colored  Orphans  v.  Mayor,  etc.,  of 
New  York,  104  N.  Y.  581,  12  N.  E.  279. 

(108) 


Ch.  3]  EXEMPTIONS  §   35 

the  charges  authorized  by  the  by-laws  do  not  operate  to 
deprive  the  home  of  the  exemption  to  which  it  otherwise 
would  be  entitled.  The  home  was  founded,  incorporated, 
endowed,  and  so  far  has  been  substantially  maintained,  by 
charity.  Its  object,  as  we  have  seen,  is  the  support  of  the 
aged  and  indigent  who  are  unable  to  support  themselves. 
It  possesses  no  element  of  private  or  corporate  gain,  and 
whatever  income  it  may  derive  is  devoted  to  the  charity 
for  which  it  is  incorporated." 

The  court  cited,  to  sustain  these  views,  various  cases 
which  did  not  arise  under  collateral  inheritance  tax  stat- 
utes, and  in  which  it  was  held  that  a  charge  imposed  upon 
applicants  for  membership  to  various  charities  did  not  de- 
prive such  charities  of  the  character  of  charitable  institu- 
tions, exempting  them  from  general  taxation,147  and,  to  this 
extent,  seems  to  have  overruled  the  general  rule  established 
in  the  lower  courts  upon  authority  of  the  Orphan  Asylum 
Case,  already  referred  to, — that  such  a  charge  deprived  the 
institution  of  its  almshouse  character,  and  thus  of  exemp- 
tion from  the  collateral  inheritance  tax.148 

There  are  several  objections  to  the  soundness  of  the  rule 
announced  in  this  case: 

(1)  It  is  difficult  to  see  how  any  institution  which  makes 
a  charge  to  inmates,  and  claims  a  right  to  take  their  prop- 
erty at  death,  can  be  characterized  as  a  charitable  institu- 
tion, or  at  least  as  an  almshouse,  within  the  definition  given 

1*7  See  Philadelphia  v.  Women's  Christian  Ass'n,  125  Pa.  St.  572,  17 
Atl.  475;  Northampton  Co.  v.  Lafayette  College,  12S  Pa.  St.  132,  18 
Atl.  516.  See  this  question  considered  under  the  Pennsylvania  stat- 
ute by  John  M.  Gest,  Esq.,  of  the  Philadelphia  bar,  in  Current  Com- 
ment and  Legal  Miscellany  for  March  15,  1891,  p.  177.  Gooch  v. 
Association,  109  Mass.  55S;  McDonald  v.  Massachusetts  General  Hos- 
pital, 120  Mass.  432;  Temple  Grove  Seminary  v.  Cramer,  98  N.  Y.  121. 

i*8  See  In  re  Keech's  Estate  (Suit.)  7  N.  Y.  Supp.  331,  affirmed 
(Sup.)  11  N.  Y.  Supp.  265;  In  re  Lenox's  Estate  (Surr.)  5  N.  Y.  Supp. 
895;  In  re  Vanderbilt's  Estate  (Surr.)  10  N.  Y.  Supp.  239-242. 

(109) 


§  35  EXEMPTIONS.  [Ch.  3 

by  the  court  of  appeals  in  the  Orphan  Asylum  Case; 149  and 
Mr.  Justice  Haight,  in  citing  this  case,  said,  in  speaking  of 
the  institution  under  consideration,  "It  would  be  an  alms- 
house, were  it  not  for  the  fact  that  under  its  by-laws  an 
entrance  fee  is  charged  to  those  seeking  its  benefits."  Yet 
the  court  practically  exempted  this  institution  on  no  other 
ground  than  that  it  was  an  almshouse. 

(2)  As  the  court  also  conceded  that  the  "home  is  not  ex- 
empt under  the  provisions  of  any  special  act,"  the  rule  laid 
down  in  this  case  would  also  seem  clearly  to  conflict  with 
the  prior  decision  of  Catlin  v.  Trustees  of  Trinity  College,150 
for  in  that  case  the  rule  unanimously  established  was  that 
the  policy  of  the  state  was  against  the  complete  exemption 
of  charitable  institutions  from  taxation,  unless  exempt  by 
general  law  or  special  charter. 

So  it  has  been  held  that  where  a  statute151  exempted 
from  taxation  that  portion  of  the  property  of  a  hospital 
society  "from  which  no  income  is  derived,"  and  the  society 
had  a  farm  used  exclusively  for  its  charter  purposes,  and 
which  was  not  self-supporting,  the  products  of  which  were 
almost  entirely  used  in  the  hospital,  except  that  occasional- 
ly articles  were  sold,  and  the  proceeds  applied  to  the  hos- 
pital inmates  on  the  farm,  held,  that  such  proceeds  were 
not  income  under  the  statute,  and  that  the  exemption  was 
not  waived  by  the  society  charging  patients  able  to  pay, 
the  money  received  from  them  being  wholly  applied  to  the 
support  and  attendance  of  patients  who  could  not  pay.152 

Under  the  constitution  of  Pennsylvania,  to  exempt  an  in- 

149  Association  for  Benefit  of  Colored  Orphans  v.  Mayor,  etc.,  of 
New  York,  104  N.  Y.  581,  12  N.  B.  279. 

iso  H3  N.  Y.  133,  138,  20  N.  E.  864. 

i5i  Laws  N.  Y.  18S9,  c.  462. 

152  People  v.  Purely  (Sup.)  12  N.  Y.  Supp.  307,  citing  Temple  Grove 
Seminary  v.  Cramer,  98  N.  Y.  121;    Philadelphia  v.  Pennsylvania 
Hospital,  47  Leg.  Int.  70. 
(110) 


<Jh.  3]  EXEMPTIONS.  §    35 

stitution  from  taxation  it  is  an  essential  feature  that  it  be  a 
public  charity,  free  from  any  element  of  private  or  corpo- 
rate gain.  When  it  is  free  from  the  latter  element,  and  is 
an  institution  devoted  to  charity  by  its  act  of  incorpora- 
tion, its  character  as  such  charity  is  not  destroyed  if,  to 
some  extent,  it  receive  a  revenue  from  the  recipients  of 
its  bounty.153 

Under  the  statute  of  this  state,154  the  tax  is  imposed  only 
on  "estates  *  *  *  passing  from  any  person  who  may 
die  seised  or  possessed  of  such  estates."  It  is  upon  the  state 
to  show,  not  only  that  the  persons  against  whom  it  claims 
taxes  are  not  of  the  exempted  class,  but  that  the  estate 
passes  from  one  who  actually  died  seised  or  possessed  of 
the  same.155 

In  Pennsylvania,  however,  a  college  founded  and  main- 
tained by  donations,  although  taking  a  tuition  fee,  is  a  pub- 
lic charity,  and  exempt  by  general  law,  but  not  from  in- 
heritance tax; 156  and  in  Virginia  an  orphan  asylum  ex- 
empt under  general  law  from  taxation  is  liable  to  the  in- 
heritance tax.157 

The  institution  known  as  the  Young  Men's  Christian  As- 
sociation is  not  a  seminary  of  learning,  or  house  of  reli- 

153  Philadelphia  v.  Women's  Christian  Ass'n  (18S9)  125  Pa.  St.  572, 
17  Atl.  475.  See  Philadelphia  v.  Pennsylvania  Hospital,  47  Leg.  Int. 
70. 

154  Act  Pa.  May  6,  1SS7,  Appendix,  III. 

155  in  re  Swann's  Estate  (Pa.  Sup.;   1891)  23  Atl.  599. 

ise  Northampton  Co.  v.  Lafayette  College,  46  Leg.  Int.  423.  But 
see  Wagner  Free  Institute  of  Science  v.  City  of  Philadelphia  (Pa. 
Sup.)  11  Atl.  402,  and  19  Atl.  297.  That  public  charities  are  not  ex- 
empt from  this  tax  in  Pennsylvania,  see  "Current  Comment  and 
Legal  Miscellany"  (Philadelphia)  for  March  15,  1891,  p.  177,  note  re- 
viewing cases,  by  John  M.  Gest,  Esq. 

157  Miller  v.  Com.,  27  Grat.  110;  Barringer  v.  Cowan,  2  Jones,  Eq. 
436;  Com.  v.  Herman,  16  Wkly.  Notes  Cas.  210,  212. 

(Ill) 


§    35  EXEMPTIONS.  [Ch.   3 

gious  worship,  and  therefore  not  exempt  from  taxation.158 
A  schoolhouse  in  the  city  of  New  York  is  not  exempt,  unless 
it  belongs  to  the  public  school  system,  or  be  exclusively 
the  property  of  an  incorporated  religious  society.159  But  a 
geographical  society,  the  works  of  which  are  accessible  at 
all  times  to  the  public,  is  a  public  library,  within  the  mean- 
ing of  the  general  law,  and  is  exempt.160  Under  the  Eng- 
lish legacy  acts,  there  is  a  provision  exempting  books,  prints, 
statues,  coins,  or  works  of  art,  bequeathed  to  certain  insti- 
tutions in  trust,  and  where  not  to  be  sold.161  The  phrase 
"public  worship"  refers  to  the  usual  church  services  upon 
the  Sabbath,  open  freely  to  the  public,  and  in  which  any 
one  may  join.162  The  word  "person,"  under  these  acts,  in- 
cludes a  bequest  to  a  corporation,  and  it  is  consequently  not 
exempt.163 

(3)  The  following  legacies  to  various  charitable,  religious, 
and  other  institutions  or  persons  have  been  declared  not 
exempt,  where  such  institutions  were  not  exempted  by  gen- 
eral or  special  law:  A  bequest  to  a  church,164  to  keep  the 
graves  of  testator's  ancestors  and  family  in  order.165     A 

158  in  re  Vanderbilt's  Estate,  supra. 

159  Church  of  St.  Monica  v.  Mayor,  etc.,  of  New  York,  119  N.  Y.  91, 
23  N.  E.  294. 

i6o  People  v.  Commissioners  of  Taxes  &  Assessments  of  New  York, 
11  Hun,  505;  In  re  Lenox's  Estate  (Surr.)  9  N.  Y.  Supp.  895;  In  re 
Herr,  55  Hun,  167,  7  N.  Y.  Supp.  8.12. 

lei  39  Geo.  HI.,  c.  73,  §  1. 

162  Young  Men's  Christian  Ass'n  v.  Mayor,  etc.,  of  New  York,  113 
N.  Y.  187,  21  N.  E.  S6.  See  In  re  Van  Kleeck's  Estate,  55  Hun,  472, 
8  N.  Y.  Supp.  806,  reversed  in  121  N.  Y.  701,  25  N.  E.  50. 

163  Miller  v.  Com.,  27  Grat.  117. 

164  See  Catlin  v.  Trustees,  113  N.  Y.  133,  20  N.  E.  864,  affirming  49 
Hun,  278,  1  N.  Y.  Supp.  808;  In  re  Miller.  5  Dera.  Sur.  13S;  In  re 
Vassar,  127  N.  Y.  8,  27  N.  E.  394.  But  see  Laws  1S90,  c.  553;  Laws 
1892,  c.  399,  §  2.    Appendix,  I.;  In  re  Van  Kleeck's  Estate,  supra. 

les  in  re  Walters'  Estate,  3  Pa.  Co.  Ct.  R.  447;  In  re  P.irkett,  9  Ch. 
Div.  576;   Hoare  v.  Osborne,  L.  R.  1  Eq.  585. 
(112) 


Ch.    3]  EXEMPTIONS.  §    35 

gift  to  a  pastor,  to  say  masses  for  the  decedent.166  Leg- 
acies for  fencing  and  keeping  a  cemetery  in  good  order  and 
repair,  and  to  a  minister  for  preaching  the  gospel,  are  liable 
to  inheritance  tax.167 

Xor  is  a  specific  bequest  to  executors,  in  trust  to  be  used 
for  masses  for  the  decedent  and  her  husband,  to  be  said 
by  a  priest,  exempt,  not  being  made  part  of  the  funeral  ex- 
penses,168 but,  where  part  of  such  funeral  expenses  is  for  a 
burial  plot,  it  is  exempt.169  A  legacy  to  be  used  for  dress- 
ing and  caring  for  a  cemetery  lot  and  grave  of  testator  is 
not  subject  to  tax.170  But  a  legacy  of  an  annuity  to  a 
church,  conditioned  upon  the  ringing  of  the  church  bell  for 
an  hour  on  a  specified  day  in  each  year,  is  subject  to  tax.171 

And  the  tax  is  payable  where  the  bequest  for  masses  is 
invalid  in  law,  and  goes  to  a  religious  corporation,  which 
is  made  residuary  legatee  under  the  will.172 

So  a  bequest  to  a  mutual  benefit  assurance  association, 
which  is  not  exempted  under  general  or  special  law,  is 
liable.173 

But  money  paid  by  a  beneficiary  society  to  a  deceased 

16  6  Seibert's  Appeal  (Pa.  Sup.)  6  Atl.  105;  Rhymer's  Appeal,  93  Pa. 
St.  142;    Stewart  v.  Green,  Ir.  R.  5  Eq.  470. 

167  Hurst  v.  Cemetery  Ass'n,  note  170. 

16  8  in  re  Black's  Estate  (Surr.)  5  N.  Y.  Supp.  452.  As  to  the  valid- 
ity of  such  bequests,  see  Holland  v.  Alcock,  108  N.  Y.  312,  16  N.  E. 
305;  Power  v.  Cassidy,  79  N.  Y.  602;  Prichard  v.  Thompson,  95  N. 
Y.  76. 

169  In  re  Vinot's  Estate  (Suit.)  7  N.  Y.  Supp.  517. 

170  Hurst  v.  Cemetery  Ass'n  (1SS3)  1  Lane.  Law  Rev.  60. 

i7i  In  re  Gilpin's  Estate  (1893)  14  Pa.  Co.  Ct.  R.  122,  3  Pa.  Dist.  R. 
711,  51  Leg.  Int.  3S3. 

172  in  re  Devlin's  Estate,  N.  Y.  Daily  Reg.  Oct.  15,  1SS9. 

173  in  re  Jones'  Estate  (Surr.)  2  N.  Y.  Supp.  671.  See,  also,  In  re 
Hunter,  11  N.  Y.  St.  Rep.  700;  Church  Charity  Foundation  v.  People, 
6  Dem.  Sur.  154;  Attorney  General  v.  Abdy,  1  Hurl.  &  C.  266. 

LAW  INHER. 8  (113) 


'§  35  exemptions.  [Ch.  3 

member's  next  of  kin,  not  being  any  part  of  decedent's  es- 
tate, is  not  within  the  act.174 

A  policy  of  insurance  upon  the  life  of  a  decedent  held 
by  him  at  the  time  of  his  death,  payable  to  his  executors, 
administrators,  and  assigns,  or  to  his  personal  representa- 
tives, is  "property,"  within  the  meaning  of  the  collateral 
inheritance  act,175  subject  to  appraisal  for  the  purpose  of 
taxation.176 

The  court  said:  "The  burden  of  appellant's  efforts  seems 
to  be  to  establish  that  these  policies  were  not  property 
of  which  the  testator  was  seised  and  possessed  at  the  time 
of  his  death.  But  it  must  be  admitted  that  they  were  ob- 
ligations to  pay  money  at  a  future  date,  and  every  instru- 
ment, duly  executed  and  having  a  lawful  consideration, 
which  secures  to  the  holder  the  payment  of  money  at  a  speci- 
fied date,  confers  upon  him  the  right  of  property.  The 
statute  has  declared  what  shall  be  deemed  assets  of  the 
estate  of  a  deceased  person,  and  subject  to  distribution  by 
his  executors,177  and  includes  among  them  all  choses  in  ac- 
tion and  every  other  species  of  personal  property  and  ef- 
fects. It  is  plain  that  these  policies  were  assets  of  the  es- 
tate. The  collateral  inheritance  law  is  very  broad  in  its 
provisions.  All  property  which  the  decedent  owned  when 
he  died,  and  which  has  an  appraisable  value,  is  to  be  in- 
cluded, subject,  of  course,  to  the  payment  of  debts,  and  to 
such  exceptions  as  are  specifically  mentioned." 

But  in  England  the  amount  to  be  received  under  the  rules 
of  a  customs  benevolent  fund  formed  for  the  benefit  of  the 
widows,  children,  relatives,  and  the  nominees  of  the  officers 

i74Vogel's  Estate,  1  Pa.  Co.  Ct.  R.  352;  Folmer's  Appeal,  87  Pa. 
St.  133. 

175  Laws  1887,  c.  713. 

it g  in  re  Knoedler's  Estate  (1S93)  140  N.  Y.  377,  35  N.  E.  601,  affirm- 
ing 68  Hun,  150,  22  N.  Y.  Supp.  608. 

1774  New  York,  Rev.  St.  (Sth  Ed.)  p.  2556  §  6. 
(114) 


Ch.  3]  EXEMPTIONS.  §    36 

of  customs  has  been  held  not  to  be  a  legacy  or  taxable,  on 
the  ground  that  the  fund  did  not  constitute  part  of  the  per- 
sonal estate  of  the  subscriber,  and  that  it  was  not  prop- 
erty that  he  could  dispose  of  as  he  should  think  fit.178 

§  36.     Foreign  Corporations  and  Governments. 

The  words  "now  exempted  by  law  from  taxation,"  as  used 
in  the  New  York  act  of  1887,  refer  to  exemptions  under  the 
laws  of  the  state  imposing  the  tax;  and  the  fact  that  a 
foreign  corporation,  which  is  a  beneficiary  under  the  will 
of  a  resident  of  the  taxing  state,  is  exempt  from  taxation 
under  the  laws  of  the  jurisdiction  of  the  corporation's  origin, 
does  not  withdraw  it  from  the  operation  of  the  inheritance 
tax.179  It  seems  that  there  is  no  comity  which  requires 
that  corporations  existing  under  the  laws  of  other  states 
should  be  placed  under  a  more  favorable  position  than  do- 
mestic corporations  with  respect  to  taxation.180 

Such  foreign  corporations  are  still  liable  in  this  state, 
notwithstanding  the  provisions  of  recent  statutes.181 

The  general  rule  laid  down  by  the  courts  under  these 
statutes  is  that,  where  the  local  law  provides  for  the  ex- 
emption of  corporations  or  associations  from  taxation,  it 
means  to  include  domestic  only,  and  not  foreign,  corpora- 
ls in  re  Rowsell,  Tilsley  (2d  Ed.)  6S4,  referred  to  in  Attorney  Gen- 
eral v.  Abdy,  1  Hurl.  &  O.  26G. 

179  See,  also,  In  re  Tuigg's  Estate  (Surr.)  15  N.  Y.  Supp.  548. 

isocatlin  v.  Trustees  of  Trinity  College,  113  N.  Y.  133,  20  N.  E. 
861,  affirming  1  N.  Y.  Supp.  SOS;  People  v.  Coleman,  119  N.  Y.  137. 
23  N.  E.  4SS;  In  re  McCoskey's  Estate,  1  N.  Y.  Supp.  7S2;  In  re 
Vanderbilt's  Estate  (Surr.)  10  N.  Y.  Supp.  239;  In  re  Noyes'  Estate, 
N.  Y.  Law  J.  July  5,  1890;  People  v.  McLean,  SO  N.  Y.  254;  Carpen- 
ter v.  Com.,  17  How.  462;  People  v.  Fire  Association  of  Philadel- 
phia, 92  N.  Y.  311;   In  re  Tuigg's  Estate,  supra. 

i3i  Laws  1S90,  c.  553;  Laws  1S92,  c.  399,  §  2;  Laws  1892,  c.  169; 
Appendix,  I.  c;  In  re  Richards,  N.  Y.  Law  J.  Feb.  28,  1891. 

(115) 


§    36  EXEMPTIONS.  [Ch.  3 

tions.  The  rule  is  definitely  settled  in  New  York  that  a 
state  statute  granting  powers  and  privileges  to  corpora- 
tions, in  the  absence  of  plain  indications  to  the  contrary 
appearing  on  the  face  of  the  act,  applies  only  to  corpora- 
tions created  by  the  state,  and  not  to  foreign  corporations. 
This  applies  to  all  foreign  corporations,  whether  they  be 
charitable,  religious,  or  otherwise.182 

The  same  rule  is  applied  in  Massachusetts.183  The  rule 
is  stated  by  Andrews,  J.,  in  Re  Prime: 184 

"We  are  of  opinion  that  a  statute  of  a  state  granting  pow- 
ers and  privileges  to  corporations  must,  in  the  absence  of 
plain  indications  to  the  contrary,  be  held  to  apply  only  to 
corporations  created  by  the  state,  and  over  which  it  has 
the  power  of  visitation  and  control.  Such  is  the  natural 
interpretation  of  such  legislation,  in  the  absence  of  a  con- 
trary intention  appearing  on  the  face  of  the  act. 

"The  claim  that  the  test  of  liability  of  foreign  corpora- 
tions to  a  legacy  tax  is  the  liability  of  a  domestic  corpora- 
tion of  the  same  character  to  the  payment  of  such  .a  tax, 
and  that,  if  one  is  exempt,  the  other  is  exempt  also,  has,  we 
think,  no  foundation.      In  both  cases  the  question  is  the 

is2  code  Civ.  Proc.  N.  Y.  §  3343,  subd.  18;  In  re  Prime,  136  N.  Y. 
356,  32  N.  E.  1091,  affirming  64  Hun,  50,  18  N.  Y.  Supp.  603,  citing 
Catlin  v.  Trustees  of  Trinity  College,  113  N.  Y.  133,  20  N.  E.  864; 
In  re  Balleis'  Estate,  144  N.  Y.  134,  38  N.  E.  961,  1007,  affirming  78 
Hun,  275,  29  N.  Y.  Supp.  261;  In  re  Merriam's  Estate  (1894)  141  N. 
Y.  484,  36  N.  E.  505,  affirming  73  Hun,  587,  26  N.  Y.  Supp.  191; 
In  re  Cullum  (Suit.;   1893)  25  N.  Y.  Supp.  701,  affirmed  76  Hun,  610, 

27  N.  Y.  Supp.  1105;  In  re  Taylor's  Estate,  80  Hun,  589,  30  N.  Y.  Supp. 
582;  In  re  Smith's  Estate,  77  Hun,  134,  2S  N.  Y.  Supp.  476;  In  re 
Tuigg's  Estate  (Suit.)  15  N.  Y.  Supp.  548;  In  re  Fayerweather  (Suit.) 
30  N.  Y.  Supp.  273;    In  re  James'  Estate  (1894)  27  N.  Y.  Supp.  288, 

28  N.  Y.  Supp.  351;  Id.,  144  N.  Y.  6,  38  N.  E.  961;  People  v.  Cole- 
man, 135  N.  Y.  231,  31  N.  E.  1022;  In  re  Balleis  (1S94)  144  N.  Y.  134„ 
38  N.  E.  1007. 

183  Minot  v.  Winthrop  (1894)  162  Mass.  110,  38  N.  E.  512. 
is4  supra. 
(116) 


Ch.   3]  EXEMPTIONS.  §    36 

same, — has  the  statute  made  the  legacy  taxable?  In  the 
Catlin  Case  exemption  of  both  the  domestic  and  foreign 
corporations  was  claimed  under  the  Revised  Statutes  alone. 
If  they  did  not  exempt  the  domestic  corporation,  concededly 
they  did  not  exempt  the  foreign  one;  and,  for  convenience 
in  deciding  the  case,  both  were  regarded  as  domestic  cor- 
porations. 

"It  is  the  policy  of  society  to  encourage  benevolence  and 
charity.  But  it  is  not  the  proper  function  of  a  state  to 
go  outside  its  own  limits,  and  devote  its  resources  to  sup- 
port the  cause  of  religion,  education,  or  missions  for  the 
benefit  of  mankind  at  large.  The  argument  may  have  force 
that  the  state  might,  consistently  with  its  proper  functions, 
give  immunity  from  taxation  to  some  of  the  foreign  corpora- 
tions engaged  in  the  work  of  education  or  charity.  But, 
however  this  may  be,  we  are  convinced  that  the  statute  of 
1891 185  has  no  application  to  foreign  corporations,  and, 
having  reached  that  conclusion,  our  duty  is  ended."186 

In  proceeding  to  confer  the  privilege  of  an  exemption 
from  its  provisions,  in  the  case  of  any  religious  corpora- 
tions, the  legislature  must  be  deemed  to  have  in  mind  those 
corporations  which  were  the  creation  of  the  state,  and  not 
those  in  which  it  had  no  interest,  and  over  which  it  had 
no  control.187  The  act  of  1892  was  legislating  with  respect 
to  subjects  within  the  jurisdiction  of  the  state;  and  the 
provision  modifying  the  legislation,  as  it  affected  certain 
corporations,  must  be  considered  in  the  light  of  an  exercise 
of  the  sovereign  power  within  territorial  limits.  In  creat- 
ing this  particular  plan  for  the  taxation  of  all  property 
transferred  to  others  upon,  or  in  contemplation  of,  the  death 
of  its  owner,  the  declaration  of  an  exemption  in  favor  of 
religious  corporations,  even  though  it  might  already  exist 

las  Chapter  215. 

186  in  re  Prime  (1893)  136  N.  Y.  362,  32  N.  E.  1091. 

is?  in  re  Balleis'  Estate  (1894)  144  N.  Y.  134,  38  N.  E.  1007. 

(117) 


§    3(5  EXEMPTIONS.  [Ch.  3 

under  previous  legislation,  was  a  wise,  if  superfluous,  pro- 
vision. To  say  that  it  was  intended  to  include  foreign 
religious  corporations,  would  be  to  imply  the  grant  of  a 
privilege  by  the  legislature,  without  sufficient  indications 
of  an  intention  so  contrary  to  ordinary  state  policy  and  to 
usual  statutory  presumptions.  This  we  should  not  do. 
The  legislation  in  question  dealt  with  property  within  the 
state,  and  imposed  a  tax,  in  certain  cases,  upon  its  transfer 
to  others,  or  to  corporations. 

The  exemption  of  "charitable,  educational,  or  religious 
societies  or  institutions,  the  property  of  which  is  exempt 
by  law  from  taxation,"  from  the  operation  of  the  law,  is 
confined  to  societies  the  property  of  which  is  exempt  from 
taxation  by  the  laws  of  Massachusetts.188  Such  foreign 
corporations  are  not  exempted  under  the  act  of  1S90,189 
exempting  the  personal  estate  of  "any  religious,  educational, 
Bible,"  and  other  societies  from  taxation.190  They  are  not 
exempt  from  taxation  under  the  act  of  1892.191 

So  a  statute192  conferring  upon  a  foreign  corporation  193 
a  limited  privilege  of  taking  and  holding  real  estate  and 
personal  property  in  New  York  does  not  relieve  it  from 
taxation  under  these  acts.194 

So  the  United  States  government  is  not  exempted  from 
taxation  under  the  inheritance  tax  as  a  domestic  corpora- 

188  Minot  v.  Winthrop  (1894)  162  Mass.  113,  38  N.  E.  512,  citing 
In  re  Prime,  136  N.  Y.  347,  32  N.  E.  1091;  Oatlin  v.  Trustees  of 
Trinity  College,  113  N.  T.  137,  20  N.  E.  864;  Healy  v.  Reed,  153  Mass. 
197,  26  N.  E.  404. 

189  Chapter  553,  amending  chapter  191,  Laws  1SS9. 

190  in  re  Prime,  supra. 

i9i  Chapter  399,  §  2;  In  re  Balleis,  supra;  In  re  Fayer weather, 
supra;  In  re  Taylor,  supra;    In  re  Smith's  Estate,  supra. 

192  Laws  1889,  c.  307. 

193  I.  e.  the  American  Board  of  Commissioners  for  Foreign  Mis- 
sions. 

194  In  re  Prime,  supra. 
(118) 


Ch.  3]  EXEMPTIONS.  §   36 

tion.  It  is  to  be  regarded  as  a  foreign  corporation,  and  a 
tax  imposed  upon  a  legacy  to  it  is  not  upon  the  property 
of  the  United  States,  but  the  privilege  of  succession  accord- 
ed to  it  by  the  laws  of  the  state.195 

The  United  States,  as  a  body  politic  or  corporate,  being 
authorized  and  permitted  by  the  law  of  the  state  to  take 
personal  property  by  will,  takes  cum  onere,  subject  to  all 
burdens  and  conditions  imposed  by  law.196 

"This  tax,  in  effect,  limits  the  power  of  testamentary  dis- 
position, and  legatees  and  devisees  take  their  bequests 
and  devises  subject  to  this  tax  imposed  upon  the  succession 
to  property.  This  view  eliminates  from  the  case  the  point 
urged  by  the  appellant, — that  to  collect  this  tax  would  be 
in  violation  of  the  well-established  rule  that  the  state  can- 
not tax  the  property  of  the  United  States.  Assuming  this 
legacy  vested  in  the  United  States  at  the  moment  of  tes- 
tator's death,  yet,  in  contemplation  of  law,  the  tax  was 
fixed  on  the  succession  at  the  same  instant  of  time.  This 
is  not  a  tax  imposed  by  the  state  on  the  property  of  the 
United  States.  The  property  that  vests  in  the  United 
States  under  this  will  is  the  net  amount  of  its  legacy  after 
the  succession  tax  is  paid.197  So,  under  this  rule,  it  is  re- 
cently held  that  a  legacy  to  a  municipal  corporation,  to  wit, 
the  mayor,  aldermen,  and  commonalty  of  the  city  of  New 
York,  for  the  purpose  of  erecting  a  fountain  is  liable  to  the 
transfer  tax,  and  the  city  is  not  exempt  by  the  state  constitu- 
tion or  any  statute  law.* 

195  in  re  Merriam  (1S94)  supra,  citing  Code  Civ.  Proc.  N.  Y.  §  3343, 
subd.  IS;  In  re  Cullum's  Estate  (Surr.;  1S93)  25  N.  Y.  Supp.  701, 
affirmed  76  Hun,  610,  29  N.  Y.  Supp.  1142. 

19  6  in  re  Fox,  52  N.  Y.  530,  affirmed  94  U.  S.  315;  In  re  Merriam, 
supra;  Van  Brocklin  v.  Tennessee,  117  U.  S.  154,  6  Sup.  Ct.  670; 
U.  S.  v.  HiUegas,  3  Wash.  C.  C.  70,  Fed.  Cas.  No.  15,366. 

197  Bartlett,  J.,  in  Re  Merriam,  supra. 
v  *  In  re  Hamilton's  Estate,  13  N.  Y.  Law  J.  13S4. 

(119)         i 


§   37  EXEMPTIONS.  [Ch.  3 

§  37.     Adopted  Children — Mutually  Acknowledged 

Relation  of  Parent  and  Illegitimate 

Children,  etc. 

The  laws  of  New  York  and  Connecticut  and  most  other 
States  relieve  adopted  children  from  the  collateral  inherit- 
ance tax;  and  in  New  York,  by  act  of  1887,  those  persons 
to  whom  the  deceased,  for  not  less  than  10  years  prior  to 
his  death,  stood  in  the  mutually  acknowledged  relation  of 
a  parent,  are  excepted;  and  the  law  of  Connecticut  exempts 
the  lineal  descendants  of  such  adopted  children.  By  the 
New  York  statute  of  1892,198  when  the  property  passes  to 
"any  child  or  children  adopted  as  such  in  conformity  with 
the  laws  of  this  state,  of  the  decedent,  grantor,  donor,  or 
vendor,  or  to  any  person  to  whom  any  such  decedent,  etc., 
for  nor  less  than  10  years  prior  to  such  transfer,  stood  in 
the  mutually  acknowledged  relation  of  a  parent,"  it  is  not 
taxable  unless  it  is  personalty  of  the  value  of  $10,000  or 
more,  when  it  is  taxable  at  1  per  cent.199 

Under  this  subject  we  will  consider — First,  the  cases  that 
have  arisen  respecting  adopted  children;  second,  such  as 
come  within  the  class  of  persons  standing  in  the  mutually 
acknowledged  relation  of  parent  to  the  legatee  or  devisee; 
and,  third,  such  as  concern  illegitimate  children. 

The  word  "children,"  in  these  acts,  does  not  include  adopt- 
ed children,  but  merely  relates  to  such  as  are  children  in 
fact  of  decedent,  and  born  in  lawful  wedlock.  Such  adopt- 
ed children  are  therefore  liable  to  the  tax,200  where  not 
expressly  exempted. 

19  8  Laws  N.  Y.  1S92,  c.  399,  §  2. 

199  See  the  words  "mutually  acknowledged  relation"  discussed,  in 
Re  Hunt's  Estate,  86  Hun,  232,  33  N.  Y.  Supp.  256;  contra,  In  re 
Stillwell's  Estate  (Surr.)  34  N.  Y.  Supp.  1123. 

200  in  re  Miller's  Estate,  110  N.  Y.  216,  18  N.  E.  139,  affirming  47 
(120) 


<Jh.   o]  EXEMPTIONS.  §    37 

In  New  York,  owing  to  the  passage  of  the  amendatory 
act  of  1887,  relieving  adopted  children,  the  law  became 
somewhat  involved  as  to  those  adopted  children  who  were 
liable  under  the  previous  act  of  1885 ;  but  it  has  been  held 
that  as  the  former  act  did  not  repeal  the  latter,  bat  was 
simply  amendatory  thereof,  and  not  retroactive,  only  be- 
quests to  the  adopted  children  of  decedent  dying  after  the 
act  of  18S7  went  into  effect  were  relieved  from  the  tax,  upon 
the  theory  that  the  new  or  changed  parts  of  the  latter  act 
were  not  to  be  considered  law  at  any  time  prior  to  the  date 
of  its  passage; 201  hence  the  vested  rights  of  the  state,  ac- 
cruing under  the  act  of  1885,  as  to  such  adopted  children, 
liable  under  the  latter  act,  still  continued,  notwithstanding 
the  proceeding  against  them  to  collect  the  tax  was  not  be- 
gun until  after  the  act  of  1887  went  into  effect.202 

Finally,  by  further  amendatory  statute,203  such  adopted 
children  and  those  persons  to  whom  deceased  stood  in  the 
mutual  relation  of  parent,  and  against  whom  no  assessment 

Hun,  394;  Id.  6  Dem.  Sur.  119;  Com.  v.  Nancrede,  32  Pa.  St.  3S9; 
Tharp  v.  Com.,  58  Pa.  St.  500;  Packard's  Appeal,  37  Leg.  Int.  135; 
Com.  v.  Ferguson,  137  Pa.  St.  595,  20  Atl.  870;  Gilmore's  Estate,  14 
Pittsb.  Leg.  J.  113. 

201  In  re  Miller,  110  N.  Y.  216,  18  N.  E.  139,  citing  Ely  v.  Holton, 
15  N.  Y.  595.  See,  also,  In  re  Kemeys,  5G  Hun,  117,  9  N.  Y.  Supp. 
182.     But  see  Fox  v.  Com.,  16  Grat.  1. 

202  in  re  Arnett,  49  Hun,  599,  2  N.  Y.  Supp.  428;  In  re  Ryan  (Surr.) 
3  N.  Y.  Supp.  136;  In  re  Cager's  Will,  111  N.  Y.  346,  18  N.  E.  866; 
In  re  Thompson,  sub  nom.  Warrinier  v.  People,  6  Dem.  Sur.  211; 
Kissam  v.  People  (Surr.)  3  N.  Y.  Supp.  135;  In  re  Miller,  6  Dem. 
Sur.  119;  In  re  Hendricks'  Estate  (Surr.)  3  N.  Y.  Supp.  2S1;  In  re 
Brooks,  6  Dem.  Sur.  165;  In  re  Kemeys,  supra.  See  In  re  Howe, 
112  N.  Y.  102,  19  N.  E.  513,  affirming  48  Hun,  236. 

203  Laws  1889,  c.  479.  See  Appendix,  I.  This  law  took  effect 
when  signed  by  the  governor,  June  14,  1SS9,  and  not  when  it  was 
passed  by  the  legislature.  In  re  Kemeys,  supra.  Where  the  as- 
sessment under  the  prior  law  was  made  after  the  passage  of  the 
act  relieving  adopted  children,  or  those  standing  in  the   mutually 

(121) 


§    37  EXEMPTIONS.  [Ch.   3 

of  the  tax  had  been  made,  were  "retroactively  exempted" 
from  the  tax  to  which  they  were  liable  under  the  act  of 
1885,  where  no  assessment  of  the  tax  had  been  made  at  the 
time  of  the  passage  of  the  amendatory  act;204  and  thus, 
it  would  seem,  all  adopted  children  were  relieved  under 
these  acts.  By  the  act  of  1892,205  however,  such  adopted 
children  are  now  taxed  1  per  cent,  upon  all  personalty  of 
the  value  of  $10,000,  or  more. 

It  was  considered  that,  unless  the  adoption  be  in  con- 
formity with  the  laws  of  the  state,206  the  legacy  to  the 
adopted  child  is  liable;  but  it  is  now  held  under  the  act  of 
1887  that  an  adoption  under  the  lawsi  of  Massachusetts,  the 
statute  of  that  state  being  similar  to  that  of  New  York,  is 
sufficient  to  relieve  such  adopted  child  from  the  tax  under 
the  laws  of  the  latter  state,207  and  the  mere  use  of  the  words 
"my  adopted  child"  in  the  will  is  insufficient.208 

acknowledged  relation,  they  are  not  liable.  In  re  Thomas,  3  Misc. 
Rep.  388,  24  N.  Y.  Supp.  713,  distinguishing  In  re  Kerneys,  supra; 
In  re  Fenn  (Dec.  28,  1894)  12  N.  Y.  Law  J.  784. 

204  in  re  Hughes,  N.  Y.  Daily  Reg.  July  27,  18S9;  In  re  Thome's 
Estate  (Jan.  21,  1S90)  2  N.  Y.  Law  J.  1974;  In  re  Kerneys,  supra.  This 
does  not,  however,  include  the  children  of  such  adopted  children. 
In  re  Bird's  Estate  (Surr.)  11  N.  Y.  Supp.  895. 

205  Chapter  399,  §  2. 

206  Laws  N.  Y.  1873,  c.  S30.  And  see  this  question  discussed 
by  Kennedy,  S.,  in  Re  Spencer  (Surr.)  4  N.  Y.  Supp.  395.  But  see 
In  re  Butler,  58  Hun,  400,  12  N.  Y.  Supp.  201. 

207  in  re  Butler,  supra,  the  court  said:  "This  statute  does  not  re- 
quire the  proceedings  for  adoption  to  be  under  the  laws  of  this  state, 
but  to  be  in  conformity  with  them,  and  to  correspond  in  character 
and  manner  with  them,  wherever  they  are  conducted,  and  an  ex- 
amination of  the  proceedings  in  Boston  for  the  adoption  of  this  child 
shows  that  they  conform  substantially  to  the  requirements  of  our 
statute.  There  is  no  reason  for  a  severe  construction  of  this  statute. 
The  boy  was  legally  adopted  under  laws  substantially  similar  to  our 

208  in  re  Gardner's  Estate,  N.  Y.  Daily  Reg.  March  4,  1S89. 
(122) 


Ch.  3]  EXEMPTIONS.  §    37 

So,  it  seems,  an  act  of  the  legislature  giving  an  adopted 
child  the  right  to  inherit  does  not  relieve  him  from  the 
tax;209  and  where  an  adopted  child  possessing  a  personal 
estate  dies  unmarried  and  intestate,  leaving  a  parent  by 
nature  surviving,  the  latter  is  the  heir,  to  the  exclusion  of 
the  adopted  parents,  and  is  exempt.210 

Second.  In  order  to  constitute  the  relation  of  a  person 
standing  in  the  "mutually  acknowledged  relation"  of  parent 
under  the  New  York  statute,211  some  time  during  the  con- 
tinuance of  the  intercourse  between  the  persons  between 
whom  the  relation  is  claimed  to  exist,  there  should  be  a 
period  of  dependence  on  the  part  of  the  younger, — a  time 
when  the  latter  required  and  received  parental  care,  though 
not  necessarily  a  dependence  for  support  and  maintenance. 
The  relation  must  therefore  begin  in  youth,  though  not  of 
necessity  during  legal  minority;  and  it  should  not  be  con- 
founded with  relations  in  which  the  parental  element  is 
lacking.  A  step-parent  does  not  necessarily  stand  in  the 
relation  of  parent,  within  the  meaning  of  the  act.  Wheth- 
er the  parties  do  or  not  depends  upon  the  circumstances 
of  each  case.212      And  while  it  is  necessary  that  adoption 

own,  so  far  as  the  mode  of  procedure  is  concerned,  and  that  is  suffi- 
cient to  answer  the  requirements  of  this  law."  This  is  a  liberal 
construction  of  the  act  of  1SS7,  because  the  language  of  the  act  is 
express  that  the  adoption  should  be  "in  conformity  with  the  laws 
of  the  state  of  New  York." 

209  com.  v.  Nancrede,  32  Pa.  St.  3S9;  Wayne's  Estate,  2  Pa.  Co. 
Ct.  R.  93;  Tharp  v.  Com.,  5S  Pa.  St.  500;  Packard's  Appeal,  37  Leg. 
Int.  135. 

210  Com.  v.  Powell,  1  Montg.  (9  Penn.)  66;  16  Wkly.  Notes  Cas. 
297. 

2ii  Acts  1S87  and  1S92,  Appendix,  I.  See  the  words  "mutually 
acknowledged"  defined  in  Re  Hunt's  Estate  (1S95)  86  Hun,  232,  33  N. 
Y.  Supp.  256;  In  re  Moulton's  Estate  (1895)  11  Misc.  Rep.  694,  33 
N.  Y.  Supp.  578. 

212  in  re  Capron's  Estate  (Surr.)  10  N.  Y.  Supp.  23. 

(123) 


§   37  EXEMPTIONS.  [Ch.   3 

should  be  in  strict  conformity  to  law,  in  order  to  bring  the 
devisee  or  legatee  within  the  clause  exempting  persons  to 
whom  the  deceased,  for  not  less  than  10  years  prior  to  his  or 
her  death,  stood  in  the  mutually  acknowledged  relation  of  a 
parent,  it  seems  it  is  not  necessary  that  there  should  be 
any  express  agreement  between  the  parties;  but  the  rela- 
tion may  be  shown  to  exist  by  facts  and  circumstances  tend- 
ing to  disclose  it.  Hence,  where  all  the  relations  between 
the  parties — an  aunt  and  a  niece — were  parental  in  their 
intent,  character,  and  results,  acts  and  conduct  are  of  them- 
selves evidence  by  which  a  parental  relation  may  be  estab- 
lished, and  the  absence  of  the  use  of  the  words  "mother  and 
child"  do  not  affect  the  result  intended  by  both  parties.213 
Where  decedent  and  the  legatees  were  not  related,  nor  had 
ever  been  legally  adopted  by  decedent,  but  began  residing 
with  decedent  early  in  infancy,  having  no  home  of  their  own 
and  no  means  of  support,  and  were  maintained  and  edu- 
cated by  decedent,  assumed  her  name,  called  her  "mother," 
and  she  exercised  the  same  parental  care  over,  and  mani- 
fested the  same  affection  for,  each  of  them  as  if  they  had 
in  fact  been  her  own  children,  held  sufficient  to  constitute 
the  mutually  acknowledged  relation  of  parent  and  child 
under  the  statute,214  and  that  the  legacies  to  such  children 
were  exempt.215 

To  prove  that  decedent  and  a  child  stood  in  the  mutually 
acknowledged  relation  of  parent  and  child  for  10  years,  no 
evidence  of  formal  adoption  is  required;  mutual  acknowl- 
edgment is  enough,  and  this  may  be  proved  by  the  facts 
and  circumstances.216 

213  in  re  Spencer  (Surr.)  4  N.  Y.  Supp.  395;  In  re  Capron's  Estate, 
supra;    In  re  Butler,  58  Hun,  400,  12  N.  Y.  Supp.  201. 

214  Laws  1887,  c.  713. 

sis  in  re  Thomas  (1893)  3  Misc.  Rep.  388,  24  N.  Y.  Supp.  713. 
216  in  re  Butler,  58  Hun,  400,  12  N.  Y.  Supp.  201;    In  re  Spencer 
<Surr.)  4  N.  Y.  Supp.  395. 
(124) 


Ch.  3]  EXEMPTIONS.  §   37 

And  where  decedent  lived  in  the  family  of  G.,  her  de- 
ceased sister's  husband,  as  housekeeper,  on  land  of  which 
she  and  her  sister's  adult  children  were  tenants  in  common, 
held  facts  showing  that  the  relation  of  parent  and  child  be- 
tween decedent  and  said  children  existed  during  the  life  of 
G.,  their  father.217 

Where  the  facts  show  that  the  relation  of  parent  and 
child  existed  for  a  less  period  than  10  years  prior  to  de- 
cedent's death,  there  can  be  no  exemption  from  taxation  on 
the  ground  of  a  mutually  acknowledged  relation  of  parent 
and  child.218 

An  annuity  bequeathed  to  a  legatee  whom,  for  over  40 
years,  testator  treated  in  every  particular  the  same  as  he 
did  his  own  daughters,  and  for  whose  comfort  and  welfare 
he  showed  the  same  solicitude  as  for  the  latter,  is  exempt 
from  taxation  under  the  statute  219  providing  that  transfers 
of  property  "to  any  person  to  whom  any  such  decedent, 
grantor,  *  *  *  for  not  less  than  ten  years  prior  to  such 
transfer,  stood  in  the  mutually  acknowledged  relation  of  a 
parent,"  notwithstanding  the  legatee  was  not  related  to, 
and  was  never  adopted  by,  the  testator,  and  though  merely 
referred  to  in  his  will  as  "our  friend."  220 

Testator  did  not  stand  in  the  mutually  acknowledged 
relation  of  parent  to  a  legatee,  so  as  to  exempt  the  legacy 
from  taxation,  where  he  did  not  support  or  educate  her, 
and  she  was  not  in  any  way  dependent  on  him,  but  he  mere- 
ly lived  in  the  family  of  his  sister,  who  was  legatee's  mother, 

217  in  re  Sweetland's  Estate  (1S92;  Surr.)  20  N.  Y.  Supp.  310,  dis- 
tinguishing In  re  Spencer,  supra. 

218  in  re  Sweetland's  Estate,  supra;  In  re  Gardner's  Estate,  N.  Y. 
Daily  Reg.  March  4,  18S9. 

2i9  Laws  1892,  c.  399,  §  2. 

220  in  re  Wheeler's  Estate  (1S92)  1  Misc.  Rep.  450,  22  N.  Y.  Supp. 
1075. 

(125) 


§  37  EXEMPTIONS.  [Ch.  3 

and  contributed  to  the  support  of  the  family  in  common 
with  the  other  members  thereof,  including  the  legatee.221 

The  court  said:  "The  purpose  and  intent  of  that  part  of 
section  2  of  the  transfer  act  which  exempts  property  which 
passes  to  one  who,  for  not  less  than  10  years  prior  to  the 
transfer,  stood  in  the  mutually  acknowledged  relation  of 
a  child,  was  to  include  among  those  exempted  persons,  who 
may  not  have  been  legally  adopted,  but,  nevertheless,  stood 
in  the  same  relation  as  children,  and  were  acknowledged 
and  recognized  as  such.  The  word  'acknowledge'  would 
seem  to  indicate  that  it  was  necessary  that  the  deceased 
person  had  held  the  person  to  whom  the  transfer  was  made 
out  to  the  world  as  a  child,  or  as  one  to  whom  he  bore  that 
relation,  or  that  he  treated  and  considered  such  a  one  as  a 
child;  and  the  word  'mutually'  would  seem  to  require  that 
such  a  relation  was  mutual,  and  that  the  character  of  the 
relation  was  reciprocal.  However  close  the  relations  may 
have  been,  and  however  affectionate  each  may  have  been 
for  the  other,  still  the  case  would  not  come  within  the 
meaning  of  the  statute,  unless  the  relation  was  generally 
understood  and  acknowledged  to  be  that  of  parent  and 
child.  *  *  *  In  the  various  cases  decided  in  which  it 
has  been  held  that  transfers  \rere  exempt  because  the  mu- 
tually acknowledged  relation  of  parent  and  child  existed, 
the  children  were  taken  into  the  family  of  the  deceased, 
and  were  made  members  of  the  family,  and  lived  and  grew 
up  as  members  of  the  family,  and  were  recognized  and  con- 
sidered as  such." 

The  mutually  acknowledged  relation  of  parent  and  child 
under  the  New  York  statute  of  1892  is  not  made  out  where 
the  facts  showed  that  the  legatee  was  a  niece  of  the  de- 
cedent, and  had  lived  in  his  household  for  over  10  years; 
that  he  called  her  "daughter'"  many  times,  but  she  never 

221  in  re  Moulton's  Estate  (1895;  Suit.)  33  N.  Y.  Supp.  578. 
(12G) 


Ch.  3]  EXEMPTIONS.  §  '37 

culled  him  "father,"  always  addressing  him  as  "uncle."  1  It- 
supported  her,  and  gave  her  a  stipulated  sum  besides,  but 
always  introduced  her  as  his  niece;  never  as  his  daughter. 
At  the  time  she  went  to  live  with  him,  he  exacted  a  prom- 
ise from  her  that  she  would  never  leave  him,  and  she  never 
did  leave  him,  for  a  week  at  a  time.  For  nine  years  she 
was  never  away  from  him  for  a  night.  She  had  charge  of 
his  household,  though  for  many  years  preceding  his  death 
he  lived  at  an  hotel.  When  talking  with  her  about  his 
will,  he  said  the  greater  part  of  his  estate  was  due  to  his 
brother,  to  whom  he  was  very  grateful  for  having  saved 
him  from  bankruptcy  at  a  critical  period  of  his  business 
career,  but  that  he  intended  to  care  for  her  the  same  as  he 
did  for  his  brother's  children.  Held,  that  the  relation  was 
not  made  out.222 

But  what  would  seem  to  be  a  wide  departure  from  the 
construction  adopted  by  the  earlier  cases  upon  this  subject 
was  held  by  the  supreme  court  in  Re  Hunt,223  on  appeal 
from  the  surrogate.  A  construction  was  placed  upon  the 
language  of  the  act  which  substantially  restricts  the  mu- 
tually acknowledged  relation  of  parent  only  to  illegitimate 
children  of  the  person  from  whom  the  property  was  derived. 
In  the  Hunt  Case  the  person  claiming  the  relation  was  a 
niece  of  decedent. 

Van  Brunt,  P.  J.,  said:  "It  seems  to  us,  however,  that  an 
examination  of  the  act  clearly  shows  what  the  mutual  ac- 
knowledgment of  the  relationship  referred  to  in  the  act  is 

222  in  re  Hunt,  N.  Y.  Law  J.  Dec.  11,  1894,  affirmed  86  Hun,  232, 
33  N.  Y.  Supp.  256,  citing  In  re  Butler,  58  Hun,  403,  12  N.  Y.  Supp. 
201;  Weston  v.  Goodrich,  86  Hun,  194,  33  N.  Y.  Supp.  382;  In  re 
Spencer  (Suit.)  4  N.  Y.  Supp.  395;  In  re  Wheeler's  Estate  (Suit.) 
22  N.  Y.  Supp.  1075. 

223  in  re  Hunt  (Suit.)  33  N.  Y.  Supp.  256,  followed  in  Re  Conklin 
(May  21,  1895)  13  N.  Y.  Law  J.  514,  Fitzgerald,  S.  The  Hunt  Case 
has  recently  been  dissented  from,  distinguished,  and  criticised,  in  Re 
Sthlwell's  Estate  (Suit.)  34  N.  Y.  Supp.  1123. 

(127) 


§   37  EXEMPTIONS.  [Ch.  8- 

intended  to  cover:  First  is  mentioned  the  legitimate  child, 
next  is  mentioned  the  adopted  child,  and  next,  we  think, 
is  intended  to  be  mentioned  the  illegitimate  child  who  has 
been  for  10  years  acknowledged  as  the  testator's  child,  and 
such  acknowledgment  has  been  mutual.  That  the  question 
of  legitimacy  was  in  the  mind  of  the  framers  of  the  statute 
is  manifest  from  the  next  clause  of  the  section  in  question. 
It  says :  'Or  to  any  lineal  descendant  of  such  decedent,  gran- 
tor, donor,  or  vendor  born  in  lawful  wedlock,' — thereby  ex- 
cluding from  lineal  descendants  any  other  person  excepting 
those  descending  from  the  legitimate  child.  It  is  signifi- 
cant that  the  words  'lawful  wedlock'  are  used  in  respect  to 
this  matter  of  lineal  descendants  immediately  after  the  mu- 
tual acknowledgment,  and  that  it  had  not  been  at  all  con- 
sidered necessary  to  refer  to  it  when  a  child  or  children 
were  spoken  of  in  the  previous  part  of  the  section.  It  is  evi- 
dent that  it  was  intended  to  limit  the  exemption  of  illegit- 
imate descendants  to  the  child,  and  not  to  extend  the  same 
to  the  descendants  of  such  children.  *  -  *  *  All  that  the 
clause  in  question  seems  to  have  been  intended  to  cover  was 
the  case  where  an  illegitimate  child  had  been  recognized 
by  its  parents,  and  such  recognition  was  mutual,  and  had 
continued  for  ten  years.  In  such  a  case  it  was  intended 
that  the  legatee  should  have  the  benefit  of  the  statute.  We 
cannot  imagine  how  it  could  have  been  the  intent  of  the 
legislature  to  have  made  it  possible  to  acknowledge  or  rec- 
ognize a  relationship  which  had  no  foundation  in  fact. 
*  *  *  So,  in  the  statute,  the  parent  acknowledges  his 
illegitimate  child,  and  the  child  acknowledges  his  parent, 
and  the  mutual  acknowledgment  provided  for  by  the  statute 
takes  place." 

There  are  several  objections  to  this  construction  as  being 
too  narrow  and  restricted  in  its  application: 

(1)  That  part  of  the  language  of  the  act  relating  to  the 
subject  is  as  follows:  "When  the  property     *     *     *     passes 
(128) 


Ch.  3]  EXEMPTIONS.  §   37 

*  *  *  to  or  for  the  use  of  any  father,"  etc.,  "or  to  any 
person  to  whom  any  such  decedent,  grantor,  donor,  or  ven- 
dor for  not  less  than  ten  years  prior  to  such  transfer  stood 
in  the  mutually  acknowledged  relation  of  a  parent,  or  to 
any  descendant  of  such  decedent  *  *  *  born  in  law- 
ful wedlock."  The  words  "any  person"  would  seem  to  be 
comprehensive  enough  to  include  other  persons  than  illegiti- 
mates, but  to  hold  that  they  include  only  illegitimate  chil- 
dren is  to  exclude  every  other  person  from  relief  under  this 
clause  of  the  statute. 

(2)  This  construction,  in  its  results,  not  ony  conflicts  with 
that  arrived  at  by  the  cases  decided  under  the  act  of  1887, 
but  also  with  cases  decided  under  the  act  of  1892.  The  pre- 
cise language  of  the  act  of  1887  is  embodied  in  the  act  of 
1892.  Under  the  former  act  the  relationship  was  applied 
indiscriminately  to  all  persons  (the  statute  says  "any  per- 
son"), irrespective  of  the  fact  as  to  whether  they  were  con- 
nected by  blood  with  decedent  or  not.  Nieces  were  held 
to  be  within  the  statute  where  the  relation  was  made  out.* 

So  persons,  strangers  in  blood  to  decedent,  were  held  with- 
in the  statute  in  several  cases.224 

There  is  nothing  in  the  act  of  1892  which  shows  that  the 
legislature  intended  to  make  any  change  in  the  law  as  it 
stood  in  1887,  except  to  impose  a  tax  of  1  per  cent,  upon  the 
persons  enumerated  therein.  If  In  re  Hunt  is  correctly 
decided  at  the  general  term,225  then  all  the  cases  decided 
under  the  acts  of  1887  and  1892  are  erroneous.  The  case 
has  recently  been  criticized  and  dissented  from  in  an  able 
opinion  by  Keeler,  S.f 

*  In  re  Capron  and  In  re  Spencer,  supra. 

224  in  re  Thomas,  supra;  In  re  Sweetland's  Estate,  supra;  In  re 
Wheeler's  Estate,  supra. 

225  it  was  followed  by  Fitzgerald,  S.,  in  Re  Conklin,  supra. 

t  In  re  Stillwell's  Estate  (Surr.)  34  N.  Y.  Supp.  1123,  citing  In  re 
LAW  INHER. 9  (129) 


§  37  kxicmttions.  [Ch.  3 

Where  the  testator  died  prior  to  the  act  of  1887  (chapter 
713),  providing  for  the  exemption  of  children  where  deced- 
ent stood  in  the  mutually  acknowledged  relation  of  parent, 
the  legatees  are  not  entitled  to  exemption  upon  this  ground 
under  the  statute.226 

Third.  But  the  interest  of  an  illegitimate  child  is  taxa- 
ble;227 and  where  an  illegitimate  son  was  legitimated  by 
act  of  legislature,  approved  a  day  after  the  intestate's  death, 
it  was  held  that  the  tax,  having  already  vested,  was  not 
affected  by  the  act.228  The  intention  of  the  legislature 
must  be  clearly  expressed  in  order  to  relieve  such  children. 
Hence  no  inference  that  the  legislature  intended  to  relieve 
illegitimate  children  from  the  tax  will  be  drawn  from  the 
mere  fact  of  legitimation.229 

An  illegitimate  child,  however,  legitimated  by  act  of  as- 
sembly, with  all  the  rights  and  privileges  of  a  child  born 
in  lawful  wedlock,  is  exempt.230  An  illegitimate  son  adopt- 
ed by  decedent,  pursuant  to  an  act  of  the  legislature  which 
authorized  him  to  inherit  decedent's  estate  and  property  as 
fully  as  if  he  had  been  begotten  in  lawful  wedlock,  is  'not 
thereby  legitimated,  and  a  devise  to  him  by  decedent  is  sub- 
ject to  taxation.     Whether,  if  the  act  had  legitimated  the 

Butler,  58  Hun,  400,   12  N.  Y.  Supp.  201;    In  re  Spencer's  Estate 
<Surr.)  4  N.  Y.  Supp.  395. 

226  in  re  Fenn,  N.  Y.  Law  J.  Dec.  28,  1894. 

227  in  re  Wharton's  Estate,  10  Wkly.  Notes  Cas.  105.  And  see  In  re 
Miller,  110  N.  Y.  221,  18  N.  E.  139;  Com.  v.  Ferguson,  137  Pa.  St. 
395,  20  Atl.  870.  For  a  review  of  legislation  upon  the  subject  of  ille- 
gitimates in  Pennsylvania,  see  In  re  Kennedy's  Estate,  27  Wkly. 
Notes  Cas.  254. 

228  Galbraith  v.  Com.,  14  Pa.  St.  258;  Wayne's  Estate,  2  Pa.  Co. 
Ct.  R.  93;  Com.  v.  Stump,  53  Pa.  St.  132.  But  see  Tharp  v.  Com., 
58  Pa.  St.  500. 

229  Physick,'s  Estate,  2  Brewst.  200. 

230  Gilmoi-e's  Estate,  14  Pittsb.  Leg.  J.  113;  distinguishing  Com.  v. 
Nancrede.  32  Pa.  St.  3S9,  and  cases  supra. 

(130) 


Ch.   3]  EXEMPTIONS.  §   38 

son,  the  tax  would  have  been  payable,  was  not  decided.281 
Under  the  English  legacy  act,  illegitimate  children  subse- 
quently legitimated  by  marriage  of  their  parents  are  not 
within  the  term  "strangers  to  the  blood,"  but  inherit  as  chil- 
dren, and  hence  pay  the  lower  grade  of  duty.232  But 
where  the  children  were  illegitimate,  not  born  in  lawful 
wedlock,  nor  acquiring  the  status  of  legitimacy  by  the  sub- 
sequent marriage  of  their  parents,  they  were  held  to  be 
strangers  in  blood,  and  liable  to  duty  at  10  per  cent.233 

§  38.     Widows,  and  Husbands  of  Deceased 
Daughters.234 

In  some  of  the  states  the  wife  or  widow  of  a  son,  or  the 
husband  of  a  daughter,235  are  exempted,  and  also  the  widow 
of  the  decedent. 

Where  the  widow  of  decedent  is  provided  for  in  the  will, 
but  refuses  to  take  thereunder,  and  elects  to  claim  her  dow- 
er in  the  estate,  which  is  set  aside,  such  dower  is  not  subject 
to  the  tax,  notwithstanding  the  fact  that  by  agreement  she 
takes  less  than  the  law  would  have  allowed; 236  but  where 
the  legatee  married  decedent's  son,  but  such  son  had  died, 
and  the  legatee  had  subsequently  married  before  decedent's 
death,  she  does  not  come  within  the  term  "widow,"  and  the 
legacy  to  her  is  not  therefore  exempt.237     The  court  said:* 

23i  Com.  v.  Ferguson  (1S90)  137  Pa.  St.  595,  20  Atl.  870;  following 
Com.  v.  Nancrede,  32  Pa.  St.  389.  See  In  re  Gilmore's  Estate,  14 
Pittsb.  Leg.  J.  113. 

232  Skottowe  v.  Young,  L.  R.  11  Eq.  474. 

233  Atkinson  v.  Anderson,  21  Ch.  Div.  100. 

234  see  In  re  Woolsey,  19  Abb.  N.  C.  232,  note. 

235  See  statutes  of  New  York,  Pennsylvania,  Connecticut,  and 
Maryland,  Appendix,  I.,  III.,  VII.,  VIII. 

236  Appeal  of  Commonwealth,  34  Pa.  St.  204. 

237  com.  v.  Powell,  51  Pa.  St.  438. 
•  Page  441. 

(131) 


§   39  EXEMPTIONS.  [Ch.  3 

"The  testatrix  did  not  die  until  after  the  second  marriage 
of  the  devisee,  and  the  property  does  not  vest  in  and  pass 
to  her  until  testatrix's  death.  At  that  time  she  was  not 
within  the  class  of  exempts,  and  not  entitled  to  take  the 
property  clear  of  the  tax." 

On  the  other  hand,  it  has  been  held  that  the  exemption 
from  taxation  of  a  devise  or  a  bequest  in  favor  of  the  hus- 
band of  a  daughter  is  unaffected  by  the  circumstance  of 
the  death  of  the  daughter  occurring  before  that  of  the  tes- 
tator, her  parent,  as  the  word  "daughter"  would  seem  to 
include  a  deceased  daughter.238 

§  39.     Next  of  Kin — Lineal  and  Lawful 
Descendants. 

By  all  the  state  statutes,  persons  embraced  within  these 
terms  are  generally  exempted.  In  New  York,  Ohio,  and 
Illinois,  however,  lineal  heirs  are  now  taxed.239  The  term 
"lawful  or  lineal  descendants"  includes  only  the  direct  de- 
scendants of  the  testator  or  intestate,  and  does  not  include 
the  children  of  the  brothers  and  sisters  of  the  decedent.240 
The  lineal  descendants  exempted  from  the  tax  under  the 
New  Jersey  statute  are  those  of  the  deceased  person  only.241 

The  share  of  a  grandmother  was  held  taxable  in  Penn- 
sylvania under  the  act  of  1833,  exempting  father,  mother, 
husband,  wife,  children,  and  lineal  descendants,  there  being 
no  nearer  kindred  of  the  intestate  than  such  grandmother; 
it  being  held  that  the  next  of  kin  under  the  act  should  be 

238  in  re  McGarvey,  6  Dem.  Sur.  145;  In  re  Woolsey,  19  Abb.  N. 
C.  233,  note. 

239  statutes  of  New  York  and  Ohio,  Appendix,  L,  VI. 

240  in  re  Miller,  5  Dem.  Sur.  132,  affirmed  45  Hun,  244;  In  re  Smith, 
5  Dem.  Sur.  90;  In  re  Jones,  id.  30.  See  In  re  Hunt's  Estate  (Sup.) 
33  N.  Y.  Supp.  256. 

24i  Van  Riper  v.  Happenheimer,  17  N.  Y.  Law  J.  (Feb.  1894)  p.  49. 

(132) 


Ch.  3]  EXEMPTIONS.  §  40 

ascertained  by  rule  of  the  civil,  and  not  of  the  canon,  law.243 
But  property  devised  to  testator's  daughter,  in  trust,  for 
life,  with  power  of  appointment  by  will 243  in  the  life  tenant, 
which  the  daughter  by  will  devised  to  her  brothers  and  sis- 
ters and  their  children,  being  lineal  descendants  of  her 
father,  is  not  liable.244 

And  property  bequeathed  to  an  executor  individually, 
but  which,  by  agreement  between  him  and  the  testatrix, 
was  to  be  in  trust  for  her  brother,  is  exempt.246 

§  40.     Aliens,  Foreign  Legatees,  and  Nonres- 
idents. 

This  subject  has  already  been  considered  as  to  the  con- 
stitutional questions  involved,246  and  elsewhere  with  refer- 
ence to  questions  of  domicile  and  situs.247  Under  the  stat- 
utes no  tax  is  generally  imposed  on  aliens  as  such  save  in 
Louisiana,  where,  however,  the  tax  is  only  due  by  such  alien 
heirs  as  become  entitled  to  succession  open  in  the  state 
after  the  passage  of  the  law.248 

But  while  the  law  of  that  state  imposes  the  tax  upon 

242  McDowell  v.  Addoms,  45  Pa.  St.  430.  And  see  rules  relative  to 
collateral  and  lineal  consanguinity  under  these  acts  discussed  per 
Woodward,  C.  J. 

243  See  chapter  6,  §  60. 

244  Com.  v.  Williams,  13  Pa.  St.  29;  Com.  v.  Sharpless,  2  Chest. 
Co.  R.  (Pa.)  246;  Com.  v.  Schumacher,  9  Lane.  Bar  (Pa.)  199;  Hackett 
V.  Com.,  102  Pa.  St.  505. 

245  in  re  Farley,  15  N.  Y.  St.  Rep.  727.  Contra,  Cullen  v.  Attorney 
General,  L.  R.  1  H.  L.  890.  As  to  death  by  drowning,  mother  and 
children,  presumption  of  survivorship,  collateral  inheritance  tax,  see 
Clymer's  Estate  (18S5)  16  Wkly.  Notes  Cas.  36. 

246  Chapter  2,  §  26. 

247  Chapter  4. 

2i8  Succession  of  Oyon,  6  Rob.  (La.)  504;  Succession  of  Deyraud,  9 
Rob.  (La.)  357. 

(133) 


§   41  EXEMPTIONS.  [Ch.   3 

nonresident  aliens  and  alien  heirs  and  citizens  residing 
abroad,  nonresident  heirs  who  are  citizens  of  any  other 
state  of  the  United  States  are  exempt.249 

Under  these  statutes  it  has  been  held  that  the  word  "es- 
tate" is  synonymous  with  the  word  "successor." 


250 


§  41.     What  Estates  or  Interests  Taxable— Amounts 

Limited. 

Many,  if  not  all,  of  these  statutes,  exempt  small  legacies 
or  estates  from  taxation,  generally  ranging  from  $250  to 
$10,000.2  51  And  in  Ohio,  under  the  direct  tax  act,  estates 
of  less  than  $20,000  are  not  taxable.  The  question  has  gen- 
erally been  whether  these  exemptions  refer  to  the  estate 
of  the  decedent  or  the  share  of  the  legatee, — a  conclusion 
depending  generally  upon  the  statutory  language  used.  In 
New  York,  under  the  acts  of  1885  and  1887,  the  rule  was 
that  the  tax  was  imposed,  not  upon  the  whole  of  decedent's 
estate,  passing  by  will  or  intestate  law,  unless  the  whole 
descend  to  collaterals,  and  be  thus  made  taxable,  but  upon 
that  specific  part  or  interest  passing  to  nonexempt  persons, 
heirs,  devisees,  or  legatees252  (the  word  "estate"  in  the  act 
referring  to  the  last-named  persons),  unless  the  testator 

249  Louisiana  v.  Peydras,  9  La.  Ann.  165,  18  How.  (U.  S.)  192. 

250  New  Orleans  v.  Stewart's  Estate,  28  La.  Ann.  180. 

251  Massachusetts,  New  York,  California,  and  Illinois. 

252  see  chapter  7,  §  64;  In  re  Howe,  112  N.  Y.  103,  19  N.  E.  513, 
affirming  48  Hun,  235,  overruling  In  re  Ghardavoyne,  5  Deui.  Sur. 
466;  In  re  Cager's  Will,  111  N.  Y.  443,  18  N.  E.  866;  In  re  Sherwell's 
Estate  (1891)  125  N.  Y.  376,  26  N.  E.  464;  In  re  Hall  (Sup.)  34 
N.  Y.  Supp.  616;  In  re  Hoffman's  Estate,  143  N.  Y.  327,  3S  N. 
E.  311;  In  re  Clark's  Estate  (Surr.)  5  N.  Y.  Supp.  199;  McVean 
v.  Sheldon,  48  Hun,  163,  overruling  In  re  Miller,  5  Dem.  Sur.  132. 
See  In  re  Thompson,  14  N.  Y  St.  Rep.  487;  In  re  McCready,  10  N.  Y. 
St.  Rep.  696;  In  re  Smith,  5  Dem.  Sur.  00;  In  re  Robertson,  Id.  92;  In 
re  Hopkins,  6  Dem.  Sur.  1;   In  re  Howard,  5  Dem.  Sur.  483;   In  re 

(134) 


Ch.   3]  EXEMPTIONS.  §    41 

direct  that  the  tax  he  paid,  not  by  the  taxable  interest,  but 
out  of  his  general  estate,  in  which  event  the  executor  must 
pay  the  tax.253 

It  was  finally  determined  in  New  York,  under  the  acts 
of  1887  and  1891,  that,  if  the  inheritance  or  testamentary 
gift  amounted  to  .ft 500  or  more,  then  the  act  operated  to  cre- 
ate a  liability  in  favor  of  the  state  to  the  extent  mentioned, 
but,  if  it  was  less,  the  act  was  wholly  inoperative,  and  that 
the  tax  wa.s  upon  the  share  of  the  legatees,  and  not  upon 
the  estate.254 

This  condition  of  the  law  is  evidenced  by  the  remarks  of 
the  court: 255  "In  construing  the  inheritance  tax  law  as  it 
stood  prior  to  the  act  of  1892,  we  had  occasion  to  decide 
that  it  imposed  a  tax  upon  the  right  of  succession  to  the 
property  of  the  testator  or  intestate  which  vested  in  the 
successors  severally,  and  in  their  respective  shares  or  pro- 
portions, and  not  upon  the  property  or  estate  of  the  de- 
Jones,  Id.  30;  Cora.  v.  Smith,  5  Pa.  St.  144;  Com.  v.  Smith,  20  Pa. 
St.  104;  Com.  v.  Kerchner,  24  Wkly.  Notes  Cas.  2G0.  The  words, 
"being  within  the  commonwealth,"  in  the  Pennsylvania  statutes,  were 
held  to  refer  to  the  property,  and  not  to  the  person,  of  decedent,  but 
by  subsequent  statute  they  were  made  to  refer  to  both.  Com.  v. 
Smith,  supra;  In  re  Short's  Estate,  16  Pa.  St.  63;  Carpenter  v.  Com., 
17  How.  (U.  S.)  461;  State  v.  Dalrymple,  70  Md.  294;  17  Atl.  82.  See 
Appeal  of  Commonwealth  (Bittinger's  Estate)  129  Pa.  St.  338,  18  Atl. 
132. 

253  See  chapter  7,  §64;  also,  In  re  Thompson's  Estate,  5  Wkly. 
Notes  Cas.  19;  Shippen  v.  Burd,  42  Pa.  St.  461;  In  re  Horters 
Estate,  1  Pears.  424;  In  re  Murphy's  Estate,  4  Pa.  Co.  Ct.  R.  336; 
In  re  Holbrook's  Estate,  3  Pa.  Co.  Ct.  R.  265;  Com.  v.  Boyle,  2  Del.  Co. 
Rep.  (Pa.)  335.     But  see  In  re  Swift,  137  N.  Y.  77,  32  N.  E.  1096. 

254  in  re  Sherwell's  Estate  (1891)  125  N.  Y.  376,  26  N.  E.  464; 
Id.  (Sup.)  12  N.  Y.  Supp.  200;  In  re  Sterliug  (1894)  30  N.  Y.  Supp. 
386;  In  re  Hoffman's  Estate,  143  N.  Y.  327,  38  N.  E.  311;  Id.,  76 
Hun,  399,  27  N.  Y.  Supp.  1086;  citing  Cager's  Will,  supra;  In  re 
Howe,  supra;  In  re  Hall,  supra. 

255  in  re  Hoffman's  Estate,  supra. 

(135) 


§   41  EXEMPTIONS.  [Ch.   3 

cedent.  The  shares  received,  in  the  hands  of  the  recipi- 
ents, were  the  measures  of  the  right  which  was  subjected 
to  assessment,  and  the  imposed  tax  could  be  enforced  per- 
sonally against  the  successor  charged.  One  effect  of  this 
construction  manifested  itself  when  a  question  arose  over 
the  provision  which  limited  the  assessment  to  estates  of 
five  hundred  dollars  or  over.  *  *  *  We  solved  that 
problem  in  two  cases; 256  *  *  *  and  the  word 'estate/  to 
which  the  limitation  of  $500  was  attached,  must  necessarily 
mean  the  estate  received  by  the  particular  successor,  and 
not  that  of  the  testator  or  intestate  upon  which,  as  such 
and  in  the  aggregate,  no  tax  was  imposed."  The  question 
then  arose  under  the  transfer  tax  act  of  1892  as  to  whether, 
in  view  of  its  modification  of  the  prior  law,  the  tax  was 
imposed  upon  the  decedent's  estate,  or  upon  the  share  of 
the  successor  thereto. 

Under  this  statute,257  a  tax  is  now  imposed  upon  two 
classes:  First,  a  tax  of  5  per  cent,  upon  property  of  the 
value  of  $500  or  over  passing  to  certain  collateral  heirs  and 
strangers, — i.  e.  to  persons  or  corporations  not  exempt  by 
law  from  taxation  on  real  aud  personal  property;258  sec- 
ond, a  tax  of  1  per  cent,  upon  lineal  heirs  of  decedent  and 
others  specified;259  the  act  providing  in  relation  to  this 
class  that  "such  transfer  of  property  shall  not  be  taxable 
under  this  act,  unless  it  is  personal  property  of  the  value 
of  $10,000  or  more."  The  words  "estate"  and  "property" 
are  defined  by  the  act 260  to  mean  the  property  or  interest 
therein  of  the  testator,  intestate,  etc.,  passing  or  transferred 
to  those  not  specially  exempted  from  the  provisions  of  the 
act,  and  not  as  the  property  or  interest  therein  passing  to 

256  in  re  Cager,  and  In  re  Howe,  supra. 

257  Laws  1892,  c  399,  §§  2,  3. 

258  id.  §  1. 

259  Id.    §    2. 

260  id.  §  22. 

(136) 


Ch.   3]  -        EXEMPTION-.  §    41 

individual  legatees,  etc.  The  word  "transfer"  was  defined 
to  include  the  passing  of  property  or  any  interest  therein, 
etc.,  by  inheritance,  descent,  devise,  bequest,  grant,  deed, 
bargain,  sale,  or  gift.  In  considering  the  question  as  to 
the  meaning  of  the  $10,000  clause,  the  lower  courts  held,  in 
pursuance  of  decisions  under  the  previous  acts,261  that  the 
limit  of  $10,000  did  not  relate  to  the  property  of  the  de- 
cedent, but  to  the  shares  of  the  legatees  or  lineal  heirs,  thus 
making  it  possible  for  a  testator  to  avoid  the  tax  by  redu- 
cing intended  legacies  of  $10,000  to  lineals  to  a  sum  slightly 
below  that  amount.  The  court  of  appeals  overruled  this 
construction,  and  held  that  the  portion  of  the  statute  pro- 
viding that  property  passing  to  lineal  heirs  is  exempt  from 
taxation,  "unless  it  is  personal  property  of  the  value  of  $10,- 
000  or  more,"  262  meant  the  estate  or  property  of  the  testa- 
tor, and  not  that  of  the  devisee  or  legatee ;  and  hence  if  the 
aggregate  estate  of  a  decedent  passing  under  this  clause  is 
of  the  value  of  $10,000  or  more,  and  passes  to  lineals,  it  is 
liable  to  taxation,  notwithstanding  the  shares  of  the  lega- 
tees may  be  less  than  that  sum.263 

Finch,  J.,  said:  "The  first  question  presented  on  this  ap- 
peal, relating  to  a  life  estate  bequeathed  to  the  mother  of 
the  testatrix,  and  valued  at  less  than  $10,000,  must  be  de- 
cided, as  it  always  has  been  in  similar  cases  hitherto,  in  fa- 
vor of  the  legatee,  unless  in  that  respect  the  law  of  1892  has 

26i  See  In  re  Hoffman's  Estate,  76  Hun,  399,  27  N.  Y.  Supp.  10S6, 
citing  In  re  Howe,  112  N.  Y.  100,  19  N.  E.  513. 

262  i  Rev.  st.  tit.  4,  pt.  1,  c.  1,  §  21. 

263  in  re  Hoffman's  Estate,  supra.  See,  also,  In  re  Taylor's  Estate 
(1S93)  6  Misc.  Rep.  277,  27  N.  Y.  Supp.  232;  In  re  Hoffman's  Estate, 
5  Misc.  Rep.  439,  26  N  Y.  Supp.  8S8,  citing  In  re  Flynn's  Estate  (Surr.) 
30  N.  Y.  Supp.  3S8,  and  distinguishing  In  re  Wheeler's  Estate,  1 
Misc.  Rep.  450,  22  N.  Y.  Supp.  1075.  See  In  re  Ludlow's  Estate,  4 
Misc.  Rep.  594,  25  N.  Y.  Supp.  9S9;  In  re  Millward's  Estate,  6  Misc. 
Eep.  425,  27  N.  Y.  Supp.  2S6;  In  re  Hall  (Sup.)  34  N.  Y.  Supp.  616. 

(137) 


§   41  EXEMPTIONS.  [Ch.  3- 

changed  the  necessary  interpretation.  But  I  think  it  has, 
and  that  such  result  was  directly  and  consciously  intended 
by  the  legislature.  *  *  *  I  am  unable  to  understand 
the  entirely  new  provision  of  section  22,  unless  its  purpose 
is  to  compel  a  change  of  our  previous  construction,  and  re- 
quire us  to  attach  the  limitation  of  $10,000  of  value  to  the 
estate  of  the  decedent,  and  not  to  the  several  and  particular 
estate  passing  to  the  successor." 

In  referring  to  section  22  above,  the  court  said: 
"It  will  be  observed  that  the  idea  of  the  lawmaker  is  ex- 
plained by  declaring,  not  only  what  the  words  'estate7  and 
'property,'  as  used  in  the  act,  shall  mean,  but  also  what  they 
shall  not  mean;  and  the  negation  is  a  denial  in  terms  of 
the  precise  construction  which  this  court  had  previously 
adopted  in  determining  what  was  meant  by  the  word  'es- 
tate' when  used  ambiguously  and  without  qualifying  words, 
as  it  was  used  in  connection  with  limitations  of  value. 
*  *  *  Nothing,  therefore,  in  these  definitions,  can  be 
permitted  to  touch  our  general  doctrine  of  the  nature  of 
the  tax.  But  what,  then,  do  they  touch,  and  what  pur- 
pose do  they  subserve?  We  must  look  for  some  place  in 
the  act  where  the  word  'property'  is  used  by  itself,  and,  to 
some  extent,  ambiguously,  and  therefore  needs  the  help 
of  a  definition.  We  find  such  a  possible  place  in  section 
2,  where  the  phrase  is  'unless  it  is  personal  property  of  the 
value  of  ten  thousand  dollars  or  more.'  That  may  mean  the 
aggregate  value  of  all  the  property  transferred  to  taxable 
persons,  or  the  separate  value  of  each  several  transfer.  We 
had  said  that  it  meant  the  latter,  but  now  comes  the  legis- 
lature declaring  that  the  word  'property'  shall  mean  what 
passes  to  those  not  exempted,  and  not  what  passes  to  indi- 
vidual transferees.  While  the  prohibition  cannot  apply 
to  the  general  theory  of  the  tax,  it  can  apply  to  this  de- 
scription of  a  specific  limitation. 
"We  had  said  it  related  to  the  property  of  individual 
(138) 


Ch.   3]  EXEMPTIONS.  §   41 

transferees,  but  that  construction  section  22  was  intended 
to  forbid  and  prevent  If  it  does  not  mean  that,  I  am  un- 
able to  perceive  any  office  it  can  perform,  or  any  useful  pur- 
pose it  can  subserve.  That  effect,  I  think,  we  are  bound 
to  give  it,  since  we  can  do  so  without  disturbing  the  scope 
of  the  act,  and  in  view  of  the  legal  situation  which  existed 
and  the  possible  evil  which  it  was  thought  prudent  to  pre- 
vent. 

"And  so  we  are  prepared  to  say  that  the  interest  of  the 
mother  is  taxable  at  one  per  cent.,  although  itself  of  a  value 
of  less  than  $10,000,  because  the  aggregate  transfers  by  the 
will  to  taxable  persons  exceeded  that  amount." 

While  it  is  true  that  Finch,  J.,  in  the  beginning  of  his 
opinion,  suggested  264  that  the  tax  was  one  upon  the  right 
of  succession,  and  added  that  it  was  levied  upon  successors 
in  respect  to  the  shares  to  which  they  succeed,  and  not  upon 
the  decedent's  estate  as  such,  yet  the  language  of  the  opin- 
ion cited  above  shows  clearly  that  the  court  adjudged  oth- 
erwise; and  under  these  adjudications  the  rule  would  now 
seem  to  be  settled  in  New  York,  under  the  act  of  1892,  that 
the  tax  is  not,  as  formerly,  upon  the  share  or  interest  pass- 
ing to  the  legatee  or  devisee,  but  upon  the  aggregate  value 
of  the  testator's  or  decedent's  estate  passing  to  taxable 
persons,  whether  of  the  lineal  or  collateral  class. 

So  it  has  been  held  under  the  $500  clause  of  the  New 
York  act  of  1892  that  in  every  case  where  property,  real  and 
personal,  of  the  value  of  $500  or  more,  passes  to  persons 
or  corporations  (collaterals)  not  exempt  from  taxation,  the 
liability  to  tax  at  the  rate  of  5  per  cent,  exists,  and  the 
liability  is  not  affected  by  the  size  of  the  individual 
shares.265  The  property  exempted  under  this  clause  is  not 
the  property  passing  to  the  legatee,  which  must  be  less  than 

264  in  re  Hoffman's  Estate,   supra. 

2G5  in  re  Taylor's  Estate  (Surr.;   1893)  27  N.  Y.  Supp.  232. 

(139) 


§    41  EXEMPTIONS.  [Ch.    3 


in  order  to  entitle  the  same  to  exemption,  but  the 
amount  of  all  property  passing  to  legatees  of  the  unexempt- 
ed  class,  which  must  be  less  than  $ 500.  If  the  aggregate 
estate  passing  to  nonexempt  persons  is  $500  or  over,  it  is 
taxable,  notwithstanding  the  individual  legacies  are  under 
that  amount.266  It  is  the  "transfer"  that  is  taxed,  and  not 
the  "estate"  of  the  beneficiaries  respectively.  It  is  the  prop- 
erty as  a  whole  as  it  descends  from  the  decedent,  and  not 
the  separate  parcels  into  which  it  may  be  divided,  whether 
the  tax  falls  under  the  1  per  cent,  or  under  the  5  per  cent, 
provision.  This  view  is  in  harmony  with  the  evident  policy 
of  the  law  that  all  property  of  the  decedent  shall  be  subject 
to  the  tax,  except  in  small  estates  of  less  than  $500.267 

The  exemption  in  the  statute  of  Maine  268  providing  that 
all  property  which  shall  pass  by  will  or  by  the  intestate 
laws  of  the  state  "shall  be  liable  to  a  tax  of  two  and  one- 
half  per  cent,  of  its  value,  above  the  sum  of  $500,"  is  not  an 
exemption  from  the  corpus  of  the  estate,  but  is  an  exemp- 
tion of  that  sum  from  each  and  every  legacy  or  share  given 
or  descending  to  persons  within  the  classes  subject  to  the 
excise.269 

"It  is  also  contended  that  the  tax  is  unreasonable  on  ac- 
count of  the  exemption  contained  in  the  proviso  of  the  first 
section  of  the  statute.  In  all,  or  nearly  all,  systems  of  taxa- 
tion, there  are  some  exemptions,  but  the  objection  here  is 
that  estates  whose  value,  after  payment  of  all  debts,  shall 
not  exceed  $10,000,  are  exempt,  without  regard  to  the  value 
of  the  property  received  by  the  devisees,  etc. 

zee  in  re  Flynn's  Estate  (Surr.;  1893)  30  N.  Y.  Supp.  388;  In  re 
Hall  (Sup.)  34  N.  Y.  Supp.  616.  Contra,  In  re  Sterling's  Estate 
(Surr.;  1894)  30  N.  Y.  Supp.  385. 

267  Ward,  J.,  in  Re  Hall  (Sup.)  34  N.  Y.  Supp.  616;  citing  In  re 
Hoffman's  Estate,  143  N.  Y.  327,  38  N.  E.  311. 

26  8  Laws  1893,  c.  146,  §  1,  Appendix.  V. 

269  state  v.  Hamlin  (1894)  86  Me.  495,  30  Atl.  76. 
(140) 


Ch.    3]  EXEMPTIONS.  §    41 

"It  is  argued  that  the  excise,  if  upon  the  privilege  of  tak- 
ing property  by  will  or  descent,  should  be  the  same  when- 
ever the  privilege  enjoyed  is  the  same  in  kind  and  extent, 
whatever  may  be  the  value  of  the  estate,  and  that  the  ex- 
emptions should  relate  to  the  value  of  the  property  re- 
ceived by  those  who  have  the  privilege  of  receiving  it,  and 
not  to  the  value  of  the  estate.  But  the  right  or  privilege 
tax  can  perhaps  be  regarded  either  as  the  right  or  privilege 
of  the  owner  of  property  to  transmit  it  on  his  death,  by  will 
or  descent,  to  certain  persons,  or  as  the  right  or  privilege  of 
these  persons  to  receive  the  property.  The  tax,  too,  has 
some  of  the  characteristics  of  a  duty  on  the  administration 
of  estates.     *     *     * 

"The  statutes  of  the  different  states  and  nations  which 
have  levied  taxes  on  devises,  legacies,  and  inheritances  have 
usually  made  exemptions,  and  these  have  sometimes  related 
to  the  values  of  the  estates,  and  sometimes  to  the  value  of 
the  property  received  by  the  heirs,  etc.  The  exemption  in 
the  statute  under  consideration  is  certainly  large  as  an  ex- 
emption of  estates,  but  it  is  peculiarly  within  the  discretion 
of  the  legislature  to  determine  what  exemptions  should  be 
made  in  apportioning  the  burdens  of  taxation  among  those 
who  can  best  bear  them,  and  we  are  not  satisfied  that  this 
exemption  is  so  clearly  unreasonable  as  to  require  us  to 
declare  the  statute  void."  270 

Under  the  New  York  statute,  which  exempts  all  estates 
from  the  tax  that  may  be  valued  at  a  less  sum  than  $500, 
it  was  held  that  a  legacy  of  that  amount  not  by  law  payable 
until  a  year  after  decedent's  death  is  not  subject  to  the  tax, 
as  its  "clear  market  value"  at  the  time  of  death  was  less 
than  |500.271     The  settled  rule  now  is  that,  if  the  legacy 

270  Field,  C.  J.,  in  Minot  v.  Winthrop  (1894)  162  Mass.  116,  38 
N.  E.  516. 

271  In  re  Peck's  Estate  (Suit)  9  N.  Y.  Supp.  465,  followed  in  Re 
Vanderbilt's   Estate  (Surr.)   10  N.   Y.    Supp.   239,   citiDg  Thorn   v. 

(141) 


§    41  KXEMPTIONS.  [Ch.   3 

amounts  to  $500  or  over,  a  liability  in  favor  of  the  state  is 
created.  If  the  value  of  the  legacy  is  less  than  $500,  the  act 
is  wholly  inoperative.272 

In  Pennsylvania  an  estate  which  may  be  valued  at  less 
than  $250  is  exempt.  Under  this  clause  of  the  statute,  as 
under  the  New  York  cases,  it  is  held  that  the  word  "estate" 
does  not  refer  to  the  interest  of  the  legatee,  but  to  the  prop- 
erty of  the  decedent;  hence,  although  the  legacies  are  under 
that  sum,  if  the  total  value  of  the  estate  exceeds  $250,  such 
legacies  are  taxable,  one  of  the  reasons  given  being  that 
otherwise  a  testator  might  divide  a  large  estate  into  innu- 
merable small  legacies  of  less  than  $250,  and  thus  defeat 
the  tax.273 

While  this  question  was  for  a  time  unsettled  in  Pennsyl- 
vania,274 it  has  been  finally  held  by  the  supreme  court  that 
the  liability  to  the  tax  is  to  be  determined,  not  by  the 
amount  of  the  legacy,  but  by  the  clear  value  of  decedent's 
estate  passing  to  persons  or  bodies  politic  not  exempt  from 
taxation.  If  the  net  value  of  the  estate  to  be  distributed 
exceeds  $250,  all  legacies  or  distributive  shares  passing  to 
collaterals,  etc.,  are  liable  to  the  tax.275 

Hence,  where  the  testator  bequeathed  seven  legacies  of 

Garner,  113  N.  Y.  198,  21  N.  E.  149.  Contra,  In  re  Pond,  N.  Y.  Daily 
Reg.  May  25,  1889;  In  re  Bird's  Estate  (Surr.)  11  N.  Y.  Supp.  895. 
See  In  re  Cager's  Will,  111  N.  Y.  343,  18  N.  E.  866. 

272  iu  re  Sherwell's  Estate,  125  N.  Y.  379,  26  N.  E.  464. 

273  in  re  King's  Estate,  11  Phila.  27;  Com.  v.  Boyle,  2  Del.  Co. 
Rep.  (Pa.)  335.  Contra,  Com.  v.  Kerschner,  24  Wkly.  Notes  Cas.  260, 
6  Lane.  Law  Rev.  308;  In  re  Evans'  Estate  (1891)  8  Lane.  Law  Rev. 
321.     See  In  re  Miller,  5  Dem.  Sur.  132. 

274  see  "Current  Comments  and  Legal  Miscellany"  (Philadelphia, 
March  15,  1891),  p.  178. 

275  Howell's  Estate  (Appeal  of  Philadelphia  Protestant  Episcopal 
City  Mission;  1892)  147  Pa.  St.  164,  23  Atl.  403,  48  Leg.  Int.  296,  and 
10  Pa.  Co.  Ct.  R.  232;  Mixte^s  Estate,  Id.  409,  8  Lane.  Law  Rev.  335. 
See  this  subject  considered  in  connection  with  the  New  York  and 

(142) 


Cll.    o]  EXEMPTIONS.  §    42 

$200  each  to  seven  charities,  and  the  legacies  amounted  in 
the  aggregate  to  an  estate  exceeding  $250,  each  of  the  lega- 
cies was  held  chargeable  with  the  tax.276 


§  42.     Foreign  Real  Estate. 

Real  estate  situated  in  a  foreign  state,  although  owned 
by  a  citizen  of  the  taxing  state,  unless  directed  by  will  to 
be  converted  into  personalty,  cannot  be  taxed  by  the  latter 
state,  as  it  is  not  within  the  jurisdictional  power  of  one 
state  to  impose  a  succession  tax  upon  real  property  beyond 
its  jurisdiction.277  In  New  York  it  has  been  held  that  such 
real  estate  belonging  to  a  resident,  even  where  the  will  di- 
rects an  equitable  conversion,  cannot  be  taxed.278  And 
under  the  act  of  1892,279  it  has  also  been  held  that  real  es- 
tate passing  by  will  to  the  widow  or  children  of  testator  is 
not  liable  to  taxation;280  but  it  seems  that  an  infant's 
share  of  the  proceeds  of  a  partition  sale  of  land  is  taxable 
as  personal  property  under  the  act  of  1892,281  which  ex- 
empts from  taxation  property  passing  to  certain  lineals, 
"unless  it  is  personal  property  of  the  value  of  $10,000  or 
more,  in  which  case  it  shall  be  taxable."  282 

Pennsylvania  cases,— by  O.  B.  Penrose,  Esq.,  in  49  Leg.  Int.  26;  by 
Hanna,  P.  J.,  in  23  Atl.  403;  and  by  Samuel  H.  Thomas,  Esq.,  in  10 
Pa.  Co.  Ct.  R.  410. 

27  6  Howell's  Estate,  supra.  See,  also,  Mixter's  Estate  (1891)  10  Pa. 
Go.  Ct.  R.  409. 

277  see  chapter  2,  §  15.  Also,  In  re  Wolfe,  19  N.  Y.  St.  Rep.  263; 
Miller  v.  People,  sub  nom.  Lorillard  v.  People,  6  Dem.  Sur.  26S; 
Estate  of  Dewey,  N.  Y.  Law  J.  Oct.  21,  18S9;  Bittinger's  Estate 
(Appeal  of  Commissioners)  129  Pa.  St.  338,  18  Atl.  132. 

27  8  in  re  Swift,  137  N.  Y.  77,  32  N.  E.  1096. 

279  Acts  N.  Y.  1S92,  c.  399,  §  2. 

2  80  in  re  Taylor's  Estate  (Surr.;   1893)  27  N.  Y.  Supp.  233. 

28i  Acts  N.  Y.  1892,  c.  399,  §  2. 

282  in  re  Stiger  (Surr.;  1894)  28  N.  Y.  Supp.  163. 

(143) 


§  43  EXEMPTIONS.  [Ch.  3- 

§  43.    Legacies  when  Exempt  under  Acts 
of  Congress. 

The  act  of  congress  283  imposing  a  tax  upon  legacies  aris- 
ing from  personal  property  does  not  apply  to  legacies  aris- 
ing from  real  estate,  although  the  testatrix  directed  its  sale 
for  the  purpose  of  paying  the  legacies.  In  limiting  the 
scope  of  the  law  to  legacies  of  personal  property,  the  in- 
ference is  that  it  was  intended  to  exempt  such  as  were  pay- 
able from  the  proceeds  of  real  estate.284  So  where  money 
is  received  by  claimants  under  a  deceased  person's  will,  by 
virtue  of  a  compromise  contract  between  them  and  the  ex- 
ecutors, sanctioned  by  a  court  having  jurisdiction,  the  mon- 
ey so  received  does  not  fall  within  the  category  of  legacies 
or  distributive  shares  in  intestate  estates,  which  are  subject 
to  a  federal  internal  revenue  tax.285 

So  money  distributed  by  act  of  congress  to  heirs  of  a  de- 
cedent arising  out  of  the  French  spoliation  claims  is  not  a 
part  of  the  estate  of  decedent,  but  a  gift  from  congress  to 
such  heirs,  and  is  not  liable  to  the  tax.288 

An  estate  bequeathed  to  testator's  brother,  and,  in  case 
of  his  death  before  testator's,  to  the  brother's  executors,  is 
not  chargeable  in  the  hands  of  such  executors  with  second 
probate  and  estates  duties,  where  such  duties  have  been 
paid  by  the  testator's  executors.287 

2  83  Act  Cong.  July  1,  1862. 

2  84  TJ.  S.  v.  Watts,  1  Bond,  581,  Fed.  Cas.  No.  16,653. 

285  Page  v.  Rives,  1  Hughes,  297,  Fed.  Cas.  No.  10,666.  But  see 
Brune  v.  Smith,  13  Int.  Rev.  Rec.  54,  Fed.  Cas.  No.  2,053;  Ex  parte 
Sitwell,  59  Law  T.  R.  539. 

286  in  re  Kingston's  Estate  (1891)  28  Wkly.  Notes  Cas.  284. 
2  87  Attorney  General  v.  Loyd  [1895]  1  Q.  B.  496. 

(144) 


Ch.   4]         RESIDENT   AND    NONRESIDENT   DECEDENTS.  §    44 

CHAPTER  IV. 

ESTATES  OF  RESIDENT  AND  NONRESIDENT  DECEDENTS. 

fj    44.    General  Rules  as  to  Domicile  and  Situs. 

45.  Conflict  under  These  Statutes. 

46.  Resident  Decedents,  Their  Heirs  and  Legatees. 

(a)  As  to  Personalty. 

(b)  Real  Estate  under  Doctrine  of  Equitable  Conversion. 

47.  Nonresident  Decedents,  Their  Heirs  and  Legatees.! 

(a)  The  English  Rule  of  "Mobilia  Sequuntur  Personam." 

(b)  Application  of  the  Rule  in  America. 

(c)  The  Rule  as  Applied  to  Tangible  and  Intangible  Prop- 

erty. 

(d)  Where  Succession  Takes  Place,  for  Purposes  of  Tax- 

ation. 

48.  Foreign  Legacies.2 

49.  Rules  Where  Nonresident  Decedent's  Debts  Exceed  Value  of 

Estate. 

§  44.     General  Rules  as  to  Domicile  and  Situs. 

Perhaps  some  of  the  most  complicated  questions  arising 
under  these  laws  are  those  concerning  the  liability,  for  the 
payment  of  succession  or  legacy  taxes,  of  estates  or  prop- 
erty, within  the  taxing  state,  belonging  to  nonresident  or 
alien  decedents,  and  passing  to  their  heirs,  devisees,  or  lega- 
tees by  will  or  intestate  law,  and  the  liability  of  resident 
decedents  to  pay  the  tax  where  the  property  is  situated 
abroad,  or  in  a  foreign  state.  The  law  upon  this  subject  is 
as  yet  but  partly  developed  in  this  country. 

Generally,  with  respect  to  personal  property  taxes,  it  is 

i  See  article  on  this  subject  by  John  A.  McCarthy,  Esq.,  in  32  Am. 
Law  Reg.  (N.  S.)  April,  1893,  p.  365;  also,  In  re  Small's  Estate,  151 
Pa.  St.  1,  25  Atl.  23. 

2  As  to  foreign  corporations,  see  chapter  3,  §  36. 

LAW  INHER. 10  Q45) 


§   44  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.   4 

not  necessaryr  that  the  person  and  property  should  both  be 
within  the  jurisdiction  of  the  taxing  state,  but,  in  order  to 
be  taxable,  it  is  sufficient  if  either  is;  and  it  is  said  that 
the  state,  at  its  option,  may  impose  the  tax  upon  tangible 
property  within  its  borders,  irrespective  of  the  residence  or 
allegiance  of  the  owner.3 

These  principles  may  be  said,  with  some  exceptions,  to 
be  applicable  to  collateral  inheritance,  legacy,  or  succes- 
sion taxes;  and  jurisdiction  is  conferred  either  by  the  fact 
of  property  or  person  being  within  the  state,  or  both.4 

The  legislature  has  the  power,  as  we  have  already  seen,5 
to  impose  these  taxes,  not  only  where  they  affect  citizens, 
but  also  where  nonresidents  or  aliens  claim,  by  inheritance 
or  will,  property  actually  located  within  the  state,  and  also 
personal  property  situated  elsewhere,  but  owned  by  a  resi- 
dent.6 

The  state  can  rightfully  tax  as  the  property  of  a  resident 
the  registered  public  debt  of  another  state,  although  the 
debtor  state  may  have  exempted  it  from  taxation,  or  actu- 
ally taxed  it.7 

Under  general  tax  laws,  so  far  as  nonresidents  are  con- 
cerned, it  is  held  that  such  taxes  are  not  a  charge  against 

s  Cooley,  Tax'n  (2d  Ed.)  55,  56. 

*  In  re  Bittinger's  Estate  (Appeal  of  Commonwealth)  129  Pa.  St. 
338,  18  Atl.  132;  In  re  Short's  Estate,  16  Pa.  St.  67;  State  v. 
Dalrymple,  70  Md.  294,  17  Atl.  82;  In  re  Small's  Estate,  151  Pa. 
St.  1,  25  Atl.  23.  See  note  on  "Nonresidents,"  32  Am.  Law  Reg.  (N. 
S.,  1893)  p.  365. 

5  Chapter  2,  §  29. 

«  State  v.  Dalrymple,  supra;  Alvany  v.  Powell,  2  Jones,  Eq.  51;  In 
re  Romaine's  Estate  (1891)  127  N.  Y.  86,  27  N.  E.  759;  Id.,  58  Hun, 
109,  11  N.  Y.  Supp.  313;  Leg.  Int.  June  26,  1891,  p.  265;  43  Alb. 
Law  J.  513;  Thomson  v.  Advocate  General,  12  Clark  &  F.  1;  In 
re  Cigala.  7  Ch.  Div.  356.  But  see  In  re  James,  144  N.  Y.  6,  3S 
N.  E.  961. 

7  Bonaparte  v.  Tax  Court,  104  U.  S.  595. 
(14G) 


•Ch.  4]  RESIDENT    AND    NONRESIDENT    DECEDENTS.  §    45 

the  owner  personally,  but  must  be  enforced  against  the 
property  itself;  and  the  state  would  seem  to  have  no  juris- 
diction to  assess  the  owner  personally.8 

§  45.     Conflict  under  These  Statutes. 

But  perhaps  no  subject  has  afforded  more  ground  for  con- 
tention and  conflict,  in  the  courts  of  England  and  America, 
than  the  one  concerning  the  liability  of  personal  property 
of  nonresident  or  alien  decedents,  within  the  taxing  state.9 

And  the  question  has  generally  been  whether  the  domi- 
cile of  the  owner,  or  the  situs  of  the  property,  should  be 
taken  as  the  governing  principle  or  basis  for  ascertaining 
the  liability  to  such  taxes;  some  courts  adopting  the  domi- 
cile, and  others  the  situs,  as  the  ground  of  such  liability. 

This  conflict  will  be  found  to  have  become  more  or  less 
complicated  by  several  considerations,  among  others: 

(a)  By  the  application,  to  a  greater  or  less  extent,  of  the 
maxim,  "Mobilia  sequuntur  personam." 10  This  rule  has 
been  applied  fully  in  the  English  courts  under  the  legacy 
act,  and,  in  a  restricted  sense,  under  the  succession  act. 

s  Cooley,  Tax'n  (2d  Ed.)  21;  citing  People  v.  Supervisors  of  Chen- 
ango Co.,  11  N.  Y.  563;  Hilton  v.  Fonda,  86  N.  Y.  339.  As  to  when 
property  sent  here  for  investment  by  foreigners  is  exempt  from 
taxation  after  owner's  death,  see  In  re  Smith's  Estate  (Surr.)  4  N.  Y. 
Supp.  467. 

9  See  Layton  on  Succession  and  Legacy  Duties,  introduction  to 
fifth  edition.  See  article  entitled  "Collateral  Inheritance  Tax  in  Con- 
nection with  Transfer  of  Stocks  and  Loans  by  Foreign  Executors 
and  Administrators,"  Alb.  Law  J.  April  16,  1892,  p.  331,  by  E.  H. 
Blanc,  Esq. 

io  See  Pullman's  Palace  Car  Co.  v.  Pennsylvania  (1S91)  141  U.  S. 
18,  22,  11  Sup.  Ct.  876,  affirming  107  Pa.  St.  156;  In  re  Small's  Es- 
tate, 151  Pa.  St.  1,  25  Atl.  23;  32  Am.  Law  Reg.  (N.  S.)  365;  In  re 
Romaine,  127  N.  Y.  86,  27  N.  E.  759;  In  re  Swift,  137  N.  Y.  77,  32 
N.  E.  1096;  5  Pol.  Science  Quart.  Dec,  1S90,  p.  646;  In  re  James, 
144  N.  Y.  6,  38  N.  E.  961. 

(147) 


§    46  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.   4 

(b)  By  the  distinction  made,  under  this  maxim,  in  cer- 
tain American  courts,  especially  in  Pennsylvania,  and  re- 
cently in  New  York,11  between  tangible  and  intangible  prop- 
erty, which  will  hereafter  be  considered. 

(c)  And,  on  the  other  hand,  by  the  application  in  many 
states  of  doctrines  of  public  policy,  so  as  to  tax  nonresident 
or  alien  estates  equally  with  those  belonging  to  residents, 
and  thus  prevent  discrimination  between  the  two  classes.12 

(d)  By  questions  of  construction  naturally  arising  in  dif- 
ferent courts  in  construing  different  statutes. 

The  principles  enunciated  by  the  courts,  under  these  stat- 
utes, concerning  the  liability  of  the  estates  of  resident  and 
nonresident  or  alien  decedents,  will  be  treated  in  the  order 
following: 

§  46.     Resident  Decedents,  Their  Heirs  and 
Legatees. 

(a)  As  to  Personalty. 

While,  under  property  tax  laws,  it  is  not  the  general  rule 
to  tax  the  personalty  of  a  resident  of  the  taxing  state,  the 
actual  situs  of  which  is  in  a  foreign  state  or  country,13  this 
would  seem  to  be  constantly  done  under  legacy  or  succes- 
sion tax  laws;  and  here  the  fiction  of  "Mobilia  sequuntur 
personam"  fully  applies,  as  the  property  is  usually  drawn 
or  remitted  to  the  owner's  domicile  for  administration  and 
distribution,  unless  detained  at  the  situs  by  creditors.14 

ii  In  re  Phipps,  77  Hun,  325,  28  N.  Y.  Supp.  330;  In  re  James,  144 
N.  Y.  6,  38  N.  E.  961. 

12  State  v.  Dairy inple,  Alvany  v.  Powell,  and  In  re  Romaine,  supra, 
are  the  leading  cases. 

is  People  v.  Commissioners  of  Taxes,  23  N.  Y.  224;  People  v.  Smith, 
88  N.  Y.  576;  People  v.  Gardner,  51  Barb.  352;  People  v.  Coleman, 
119  N.  Y.  137,  23  N.  E.  488;  People  v.  Barker,  135  N.  Y.  656,  32  N.  E. 
252. 

i*  Kintzing  v.  Hutchinson,  34  Leg.  Int.  365;   Allen  v.  Philadelphia 

(148) 


Ch.   4]  RESIDENT    AND    NONRESIDENT    DECEDENTS.  §    46 

Hence,  there  would  seem  to  be  no  question,  among  any 
of  the  authorities,  that  such  personal  property  of  a  deceased 
resident,  wherever  situated,  and  the  real  or  leasehold  estate 
within  the  state  of  his  domicile,  passing  to  persons  subject 
to  the  tax,  and  whether  such  personal  property  be  of  a  tan- 
gible or  intangible  nature,  are  taxable  under  these  laws. 
This  rule,  under  the  fiction  of  law,  applies  both  against  res- 
ident and  nonresident  legatees  or  devisees  of  such  a  dece- 
dent, as  to  personalty,  wherever  it  be  situated.15 

Hence,  stocks  of  a  foreign  corporation,  held  by  the  ex- 

Sav.  Fund,  25  Int.  Rev.  Rec.  171;  Bruce  v.  Bruce,  2  Bos.  &  P.  229, 
note;  In  re  Short's  Estate,  16  Pa.  St.  66;  McKeen  v.  Northampton 
Co.,  49  Pa.  St.  519;   and  cases  cited  section  44,  supra. 

is  Tyson  v.  State,  28  Md.  577;  Mager  v.  Grima,  8  How.  490; 
Eyre  v.  Jacob,  14  Grat.  422;  State  v.  Dalrymple,  70  Md.  294,  17 
Atl.  82;  In  re  Bittinger's  Estate,  129  Pa.  St.  338,  18  Atl.  132;  In  re 
Short's  Estate,  supra;  Orcutt's  Appeal,  97  Pa.  St.  184;  Com.  v. 
Smith,  5  Pa.  St.  143;  Alexander's  Appeal,  3  Clark  (Pa.)  87;  U.  S. 
v.  Hunnewell,  13  Fed.  617;  Stokes  v.  Ducroz,  Layton,  Leg.  and 
Succ.  Duties  (7th  Ed.)  20;  Chatfield  v.  Berchtoldt,  7  Ch.  App.  192; 
In  re  Ewin,  1  Cromp.  &  J.  151;  Attorney  General  v.  Napier,  6 
Exch.  217;  Forbes  v.  Steven,  L.  R.  10  Eq.  17S;  Custance  v.  Brad- 
shaw,  4  Hare,  315;  In  re  Coales'  Estate,  7  Mees.  &  W.  390;  Arnold 
v.  Arnold,  2  Mylne  &  C.  256;  In  re  Cigala  (1878)  7  Ch.  Div.  351; 
In  re  Enston's  Will.  113  N.  Y.  181,  21  N.  E.  87.  See,  also,  Cooley, 
Tax'n  (2d  Ed.)  44,  56;  Alvany  v.  Powell,  2  Jones,  Eq.  51;  State  v. 
Brevard,  Phil.  Eq.  141;  Com.  v.  Brenner,  2  Leg.  Gaz.  (Pa.)  413; 
People  v.  Commissioners  of  Taxes,  51  Hun,  312,  3  N.  Y.  Supp.  8S5. 
See,  also,  In  re  Line's  Estate  (1893)  155  Pa.  St.  37S,  26  Atl.  728; 
In  re  Stanton's  Estate  (1894)  34  Wkly.  Notes  Cas.  391;  In  re  Strong 
(Aug.,  1894)  17  N.  J.  Law  J.  234;  In  re  Swift  (1S93)  137  N.  Y.  77, 
88,  32  N.  E.  1096,  affirming  (Sup.)  19  N.  Y.  Supp.  292;  In  re  Merriarn's 
Estate  (1894)  141  N.  Y.  484,  36  N.  E.  505;  Iu  re  Coming's  Estate 
(1893;  Surr.)  23  N.  Y.  Supp.  285.  In  Dallinger  v.  Rapeilo,  14  Fed. 
32,  it  was  held  that  the  personal  property  of  a  deceased  inhabitant 
was  not  taxable  within  the  state,  after  the  appointment  of  an  exec- 
utor, and  before  distribution,  where  the  property  was  not  within 
the  state,  and  neither  the  executor  nor  any  person  in  interest  had 
a  doinicil  there.     The  decision,  however,  was  on  the  construction  of 

(149) 


§   46  RESIDENT   AND    NONRESIDENT    DECEDENTS.  [Ch.  4 

ecutor  of  a  resident  decedent,  are  to  be  regarded  as  part 
of  the  estate,  subject  to  the  tax.  To  compute  the  succes- 
sion tax  on  the  total  personal  estate  is  not  imposing  a  tax 
on  the  stocks  of  foreign  corporations  constituting  a  part  of 
the  estate.18 

Notes  secured  by  mortgages  of  land  in  another  state,  and 
owned  by  a  resident  of  New  York  at  his  death,  are  within 
the  statutes  of  that*  state  17  declaring  subject  to  the  legacy 
taxes  "all  property  that  shall  pass  by  will  *  *  *  from 
any  person  who  may  die  *  *  *  possessed  of  the  same 
while  a  resident  of  this  state;  and  it  is  immaterial  that 
the  notes  and  mortgages  are  in  the  hands  of  the  owner's 
agent  in  the  state  where  the  land  is  situated.18  But  where 
the  personal  estate  of  a  resident  decedent  consisted  of  a 
share  in  the  estate  of  a  decedent  who  resided  in  another 
state,  and  was  not  received  by  decedent  before  her  death, 
but  came  afterwards  to  the  hands  of  her  executors  for  the 
purpose  of  distribution,  it  is  not  taxable.19 

the  statute,  and  not  upon  the  point  of  state  power.  See  Cooley, 
Tax'n  (2d  Ed.)  p.  55,  note. 

16  In  re  Merriam's  Estate  (1894)  141  N.  Y.  4S4,  36  N.  E.  505;  In 
re  Swift.  137  N.  Y.  77,  88,  32  N.  E.  1096.  These  cases  overrule  In 
re  Thomas  (1893)  3  Misc.  Rep.  388,  24  N.  Y.  Supp.  713.  See,  also, 
In  re  Coming's  Estate  (1893)  3  Misc.  Rep.  160,  23  N.  Y.  Supp.  2S5; 
In  re  Stanton's  Estate  (1S94)  34  Wkly.  Notes  Cas.  391;  Common- 
wealth's Appeal  (Small's  Estate)  151  Pa.  St.  1,  25  Atl.  23;  Weaver's 
Estate  (1895)  12  Lane.  Law  Rev.  57;  In  re  Coleman's  Estate,  159  Pa. 
St.  231,  28  Atl.  137;  In  re  Strong,  17  N.  J.  Law  J.  (Aug.,  1S94)  234; 
Estate  of  Lines  (1893)  155  Pa.  St.  378,  26  Atl.  728. 

i?  Laws  1885,  c.  4S3,  as  amended  by  Laws  1S91,  c.  215. 

is  In  re  Coming's  Estate  (1893)  3  Misc.  Rep.  160,  23  N.  Y.  Supp. 
285,  citing  In  re  Swift,  137  N.  Y.  77,  32  N.  E.  1096;  In  re  Bittinger's 
Estate,  129  Pa.  St.  338,  18  Atl.  132. 

i»  In  re  Thomas   (1893)   3   Misc.   Rep.   38S,   24   N.   Y.    Supp.   713. 
See  In  re  Phipps  (1894)  77  Hun,  325,  28  N.  Y.  Supp.  330,  affirmed 
143  N.   Y.   641,  37  N.   E.   823.    Contra,   Weaver's  Estate   (1895)    12 
Lane.  Law  Rev.  57,  52  Leg.  Int.  197. 
(150) 


Ch.   4]         RESIDENT   AND    NONRESIDENT    DECEDENTS.  §    4G 

So  the  Pennsylvania  statute  20  taxes  all  personal  prop- 
erty of  a  resident  decedent,  no  matter  where  situated,  in- 
cluding debts  secured  by  mortgages  upon  lands  in  other 
states.21 

Interest  in  a  partnership,  actually  within  the  state,  con- 
sisting of  land,  stocks,  bonds,  and  accounts,  are  taxable.22 

A  fund  inherited  by  a  nonresident  shortly  before  his 
death,  and  paid  over  to  his  administrator  in  Pennsylvania 
by  the  administrator  of  a  resident  of  that  state,  is  subject 
to  the  collateral  tax.  It  appeared  that  the  fund  had  a  situs 
in  Pennsylvania  and  not  at  the  domicile  of  the  owner.23 

So  it  is  held  in  New  Jersey  that  personal  property  of  a 
resident,  which  at  the  time  of  decedent's  death  was  within 
the  jurisdiction  of  another  state,  is  subject  to  the  collateral 
inheritance  tax  imposed  by  the  state  of  residence,  although 
the  will  was  not  proved  in  the  latter  state.24 

And  in  Pennsylvania,  where  a  resident  decedent  made  a 
trust  deed  of  certain  bonds  and  stock  of  foreign  corpora- 
tions to  a  trustee  (corporation)  in  another  state,  giving  it 
legal  title  thereto,  but  reserving  the  income  to  himself  for 
life,  with  power  of  revocation,  aud  directing  that  after  his 
death  the  property  be  distributed  among  certain  beneficia- 
ries, it  was  held  that  the  rule  of  the  domicile  applied,  and 
that  the  property  was  taxable  under  the  statute.25 

20  Laws  1887,  p.  79,  Appendix,  III. 

2i  In  re  Stanton's  Estate  (1894)  34  Wkly.  Notes  Cas.  391,  15  Pa. 
Co.  Ct.  R.  17,  3  Pa.  Dist.  Ct.  371,  and  51  Leg.  Int.  172. 

22  Appeal  of  Commonwealth  (Small's  Estate)  151  Pa.  St.  1,  25 
Atl.  23;  distinguishing  Orcutt's  Appeal,  97  Pa.  St.  185. 

2  3  in  re  Weaver's  Estate,  12  Lane.  Law  Rev.  57,  52  Leg.  Int.  197. 

24  in  re  Strong,  17  N.  J.  Lnw  J.  (Aug.,  1894)  234;  following  In  re 
Swift,  137  N.  Y.  80,  32  N.  E.  1096. 

2  5  Estate  of  Lines  (1S93)  155  Pa.  St.  37S,  26  Atl.  728,  24  Pittsh. 
Leg.  J.  (N.  S.)  29;   citing  Orcutt's  Appeal,  97  Pa.  St.  179. 

(151) 


§    46  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.   4 

(b)  Real  Estate  under  Doctrine  of  Equitable  Conversion* 

Where  the  real  estate  of  the  decedent  is  situated  in  a 
foreign  country,  no  direct  tax  under  these  laws  can  be  im- 
posed. Being  beyond  the  jurisdiction  of  the  state  of  domi- 
cile, such  real  property  cannot  be  reached  under  these  laws 
for  the  purpose  of  taxation,  even  though  devised  to  a  resi- 
dent of  the  taxing  state.27 

Any  law  in  the  nature  of  a  direct  tax,  having  this  object 
in  view,  would,  it  seems,  infringe  upon  constitutional 
grounds,  and  be  unenforceable  by  the  state; 28  but  it  would 
seem  that  the  state  has  the  power  to  impose  a  succession 
tax  upon  every  citizen  of  the  state  who  succeeds  to  either 
real  or  personal  property,  from  whatever  source  received, 
if  it  is  not  in  the  nature  of  a  direct  tax.29 

One  of  the  most  interesting  questions  arising  under  these 
statutes  is  that  concerning  the  taxation  of  real  estate,  for- 
eign or  domestic,  under  the  doctrine  of  an  equitable  conver- 
sion by  will,  where  the  will  treats  it  as  personalty.30  The 
decisions  are  conflicting  as  to  how  far  the  state  can  take 

26  See  this  subject  discussed  in  a  valuable  note  by  H.  W.  Page, 
Esq.,  in  32  Am.  Law  Reg.  (N.  S.)  472,  entitled  "Collateral  Inherit- 
ance Tax-Conversion  of  Land  Outside  of  State." 

27  In  re  Swift,  137  N.  Y.  77,  SS,  32  N.  E.  1096,  affirming  19  N.  Y. 
Supp.  292;  In  re  Coleman's  Estate  (1893)  159  Pa.  St.  231,  28  Atl. 
137;  Commonwealth's  Appeal  (Small's  Estate)  151  Pa.  St.  1,  25 
Atl.  23;  Miller  v.  Com.,  Ill  Pa.  St.  321,  2  Atl.  492;  Lorillard  v. 
People,  6  Dem.  Sur.  268;  Drayton's  Appeal,  61  Pa.  St.  172;  Com. 
v.  Coleman,  52  Pa.  St.  468;  Hood's  Estate,  21  Pa.  St.  106;  Kintzing 
v.  Hutchinson,  Fed.  Cas.  No.  7,834;  In  re  Wolfe,  19  N.  Y.  St.  Rep. 
263;    Estate  of  Dewey,  N.  Y.  Law  J.  Oct.  21,  1889. 

28  Commonwealth's  Appeal  (Estate  of  Bittinger)  129  Pa.  St.  338, 
18  Atl.  132,  and  cases  cited  in  chapter  2,  §  15.  See  Com.  v.  Coleman, 
52  Pa.  St.  468.     But  see  Estate  of  Dewey,  supra. 

29  In  re  Bittinger's  Estate,  supra. 

so  see  32  Am.  Law  Reg.  (N.  S.)  472,  by  H.  W.  Page,  Esq. 
(152) 


Ch.  4]         RESIDENT    AND    NONRESIDENT    DECEDENTS.  §   46 

advantage  of  this  doctrine  in  order  to  impose  a  legacy  or 
succession  tax  upon  the  proceeds  of  such  real  estate,  where 
it  is  not  taxable  per  se  as  real  estate,  or  where  it  is  situate 
beyond  the  jurisdictional  limits  of  the  taxing  state. 

In  England  it  was  said  at  an  early  date  that  equity  will 
not  alter  the  nature  of  property  for  the  purpose  only  of  sub- 
jecting it  to  fiscal  claims,  to  which  at  law  it  was  not  liable 
in  its  existing  state.31  And,  in  Forbes  v.  Steven,32  James, 
L.  J.,  showed  his  ideas  of  the  doctrine  when  he  said:  "It 
would  take  a  good  deal  more  than  I  have  yet  heard  to  sat- 
isfy me  that  a  man  can,  with  the  same  breath,  say  effectual- 
ly in  this  court,  'give  me  the  money  because  it  is  residuary 
personal  estate,'  and  declare  it  is  not  taxable  because  it  is 
not  residuary  personal  estate."  Yet,  under  the  probate 
duty  act,  the  law  regarding  partnership  has  been  settled; 
and  real  estate,  being  in  the  nature  of  personalty,  and  sub- 
ject to  conversion  with  all  the  other  assets,  is  held  liable 
to  duty.33  And,  as  regards  a  British  subject,  the  succession 
duty  has  even  attached  to  foreign  real  estate  used  in  a  co- 
partnership as  an  asset,  a  member  of  which  firm  was  a 
domiciled  Englishman.34 

In  New  York  the  doctrine  of  equitable  conversion  is  well 
settled,  and  a  will  devising  the  residue  of  a  testator's  prop- 
erty to  trustees,  with  directions  to  convert  it  into  money, 
and  to  divide  it  among  designated  legatees,  works  a  con- 
si  Custance  v.  Bradshaw  (1845)  4  Hare,  315. 
3  2  L.  R.  10  Bq.  192. 

33  Attorney  General  v.  Hubbuck,  10  Q.  B.  Div.  488;  Waterer  v. 
Waterer,  L.  R.  15  Eq.  402;  Cooper  v.  Cooper,  26  Wkly.  Rep.  7S5. 
See  Attorney  General  v.  Dodd  (1894)  2  Q.  B.  150. 

3  4  Forbes  v.  Steven,  L.  R.  10  Eq.  178.  For  a  discussion  of  the 
English  cases  on  the  question  of  the  equitable  conversion  of  the  real 
estate  into  personalty  for  the  purpose  of  taxation  under  these  acts, 
see  note  to  In  re  Williamson's  Estate,  32  Am.  Law  Reg.  (N.  S.)  472, 
26  Atl.  246,  by  H.  W.  Page,  Esq.,  criticising  the  rule. 

(153) 


§   46  RESIDENT    AND    NONRESIDENT   DECEDENTS.  [Ch.   4 

version  of  realty  into  personalty,  and  in  construing  the  will 
the  rules  governing  personalty  are  to  be  applied.35 

Recently,  in  that  state,  the  subject  of  the  taxation  of  for- 
eign real  estate  belonging  to  a  resident,  under  the  doctrine 
of  equitable  conversion  by  will,  has  been  considered;  and 
it  was  held,  under  the  act  of  18S7,  that  such  real  estate,  al- 
though directed  to  be  converted  into  personalty,  wTas  not 
taxable,  because  the  statute  did  not  intend  to  tax  it,  and  the 
doctrine  of  equitable  conversion  was  also  held  not  appli- 
cable to  subject  it  to  taxation.38 

The  question  was  only  briefly  considered  in  this  case,  and 
no  reasons  were  given  by  the  court,  except  those  stated 
above.  It  was  raised  later  in  the  court  of  appeals,37  and 
was  said  to  be  a  difficult  question,  but  the  court  did  not 
discuss  it  further.  The  rule  has,  however,  since  been  fol- 
lowed. 

The  doctrine  is  not  applicable  under  the  statute  for  the 
purpose  of  making  a  legacy  of  money  one  of  real  estate,  into 
which  it  was  directed  to  be  invested  by  the  executors  for 
the  legatee's  benefit.38 

And  a  legacy  to  a  church  for  the  purpose  of  building  a 
new  one,  or  renovating  the  old,  cannot,  under  the  doctrine 

8  5  Bowditch  v.  Ayrault  (N.  Y.  App.)  33  N.  E.  1067;  Foster  v.  Win- 
field  (Super.  N.  Y.)  23  N.  Y.  Supp.  172;  White  v.  Howard,  46  N.  Y. 
144;   In  re  Fox's  Will,  52  N.  Y.  536;   Power  v.  Cassidy,  79  N.  Y.  602. 

3  6  In  re  Swift  (1893)  137  N.  Y.  77,  32  N.  E.  1096;  Id.  (Sup.)  19  N.  Y. 
Supp.  292;  In  re  Secor  (June  22,  1893)  9  N.  Y.  Law  J.  779.  See  In  re 
Coleman's  Estate  (1S93)  159  Pa.  St.  231,  28  Atl.  137;  In  re  Small's 
Estate,  151  Pa.  St.  1,  25  Atl.  23,  28.  These  cases  practically  overrule 
In  re  Wheeler's  Estate,  1  Misc.  Rep.  450,  22  N.  Y.  Supp.  1076,  holding 
such  real  estate  under  the  doctriue  taxable,  as  against  direct  heirs,  al- 
though the  act  of  1S92  (chapter  399,  §§  1,  2)  plainly  exempts  such  real 
estate  from  taxation. 

37  in  re  Curtis,  142  N.  Y.  221,  36  N.  E.  887. 

ss  in  re  Raymond,  N.  Y.  Law  J.  Nov.  9,  1894. 
(154) 


Ch.  4]         RESIDENT    AND    NONRESIDENT    DECEDENTS.  §   46 

of  equitable  conversion,  be  considered  real  estate.  It  is  a 
legacy  of  money,  and  taxable.39 

It  has  been  held,  however,  that  an  infant's  share  of  the 
proceeds  of  a  partition  sale  of  land  is  taxable  as  personal 
property,  under  the  New  York  law  of  1892/°  which  exempts 
from  taxation  property  passing  to  certain  lineal  heirs,  "un- 
less it  is  personal  property  of  the  value  of  $10,000  or  more, 
in  which  case  it  shall  be  taxable."  41 

The  doctrine  in  New  York  conflicts  to  some  extent  with 
that  in  Pennsylvania,  where  it  is  held  that,  where  the  will 
of  a  decedent  directs  that  real  property  situated  abroad 
shall  be  converted  into  personalty,  it  may  be  taxed  by  the 
laws  of  decedent's  domicile,  as  the  tax  is  in  reality  consid- 
ered as  being  imposed  upon  the  proceeds  passing  under 
the  will.42  The  same  rule  was  followed  in  a  later  case,43 
where  there  was  real  estate  of  testator  in  other  states, 
which  he  directed  his  executors  to  sell,  and  the  proceeds 
to  be  divided  among  persons  and  objects  at  the  domicile; 
and  it  was  held  that  the  direction  to  sell  converted  the  real 
estate  and  its  proceeds  into  personalty,  and  they  were  liable 
to  taxation. 

But  there  are  exceptions  to  the  rule.  And  where  a  tes- 
tator directs  that  real  estate  situated  in  another  state  shall 
be  sold  after  the  death  of  his  wife,  and  that  the  proceeds 

39  Sherrill  v.  Christ  Church  (1S90)  121  N.  Y.  701,  25  N.  E.  50;  revers- 
ing 55  Hun,  472,  8  N.  Y.  Supp.  80G,  and  citing  Catlin  v.  Trustees  of 
Trinity  College,  113  N.  Y.  133,  20  N.  E.  864. 

40  Chapter  399,  §  2. 

4i  In  re  Stiger  (Surr.)  28  N.  Y.  Supp.  163. 

42  Miller  v.  Com.,  Ill  Pa.  St.  321,  2  Atl.  492,  followed  in  Re  Wil- 
liamson's Estate  (1893)  153  Pa.  St.  508,  26  AU.  246;  Id.,  143  Pa.  St. 
150,  22  Atl.  836.  See  note  to  this  case  by  W.  H.  Page,  Esq.,  in  32 
Am.  Law  Reg.  (N.  S.)  472.  See  48  Leg.  Int.  428;  49  Leg.  Int.  106; 
In  re  Howard,  5  Dem.  Sur.  486;  In  re  Wheeler's  Estate  (Surr.)  22  N. 
Y.  Supp.  1076. 

4  3  in  re  Williamson's  Estate,  supra;  Mitchell,  J.,  dissenting. 

(155) 


§    46  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.   4 

thereof  shall  be  invested  in  mortgages  in  such  state,  the 
proceeds  are  not  subject  to  taxation  in  Pennsylvania,  even 
if  the  interests  of  the  parties  in  remainder  vest  in  them,  at 
testator's  death,  as  personalty.44  Ashman,  J.,  said  (page 
183):  "The  testator  was  domiciled  in  this  state  at  his 
death,  and  the  real  estate  which  he  directed,  by  his  will,  to 
be  sold,  is  situate,  part  of  it  in  New  Jersey,  and  most  of  it 
in  Missouri.  The  direction  to  sell  covered  these  lands  but 
it  was  operative  only  at  the  death  of  the  widow, — an  event 
which  has  now  happened.  If,  during  her  life,  the  lands  re- 
tained, as  against  the  commonwealth,  their  original  char- 
acter, they  were  beyond  the  reach  of  the  taxing  power  of 
this  state.45  If  the  direction  to  sell  had  been  immediate, 
as  in  Ke  Williamson's  Estate,46  or,  which  is  the  same  thing, 
if  the  exercise  of  the  power  was  extended  at  the  discretion 
of  the  executor,  and  in  the  interest  of  the  estate,  for  three 
years  after  the  death,  as  in  Miller  v.  Com.,47  then,  under 
the  ruling  in  both  of  those  cases,  the  estate  which  passed 
from  the  testator  would  be  personalty,  and  would  be  liable 
to  the  tax.  In  the  case  in  hand,  the  estate  which  passed 
under  the  will  was  a  freehold,  and  its  situs  was  beyond  the 
commonwealth;  and  neither  its  character  nor  its  situs 
was  possible  of  change  during  the  life  of  the  first  taker. 
*  *  *  The  fund  in  Williamson's  Estate  and  Miller  v. 
Com.,  supra,  was  to  be  brought  within  this  jurisdiction;  and 
it  had  become  literally,  in  the  words  of  the  act,  an  estate 
passing  from  the  testator,  within  the  commonwealth.  The 
direction  here  is  that  it  shall  be  withheld  from  transmis- 
sion into  this  commonwealth,  and  shall  be  invested  in  mort- 
gages and  real  estate  in  St.  Louis.     It  can  hardly  be  said, 

44  In  re  Hale's  Estate  (1893)  161  Pa.  St.  181,  28  Atl.  1071,  14  Pa. 
Co.  Ct.  R.  220,  and  3  Pa.  Dist.  R.  84. 
4  5  Citing  Com.  v.  Coleman,  52  Pa.  St.  468. 
4c  153  Pa.  St.  521,  26  Atl.  246. 
4  7  ill  Pa.  St.  321,  2  Atl.  492. 
(15G) 


Ch.   4]         RESIDENT    AND    NONRESIDENT    DECEDENTS.  §    16 

in  face  of  this  unqualified  injunction  of  the  testator,  that 
the  fund  follows  the  person  of  the  owner,  and,  while  it  is 
secured  upon  real  estate  in  Missouri,  is  nevertheless,  by  a 
legal  fiction,  transferred  into  Pennsylvania.  To  accede  to 
this  would  compel  us  to  hold  that  the  substance  of  property 
may  be  taxed  in  one  state,  and  its  shadow  in  another, — a 
species  of  phantom  legislation  which,  we  believe,  has  not 
yet  been  recognized  by  the  courts.  *  *  *  It  follows 
from  all  this  that,  whether  it  bears  the  impress  of  realty  or 
personalty,  the  estate  is  not  subject  to  the  imposition  of  the 
tax."4? 

A  mere  authority  to  the  executors,  however,  to  sell  such 
foreign  real  estate,  without  any  positive  direction  to  that 
effect  contained  in  the  will,  does  not  warrant  the  taxing  of 
the  proceeds,  notwithstanding  that  the  executors  bring 
them  within  the  state,  and  mix  the  proceeds  with  other 
money  belonging  to  the  estate.49 

The  court  said : 50  "We  must  consider  the  case  as  if  this 
Minnesota  land  had  been  all  the  estate  the  testator  had, 
and  as  if  it  had  been  sold  under  the  power,  and  the  pro- 
ceeds distributed  abroad.  Surely,  the  bringing  them  into 
this  state,  and  depositing  them  in  the  bank  account  of  the 
executors,  along  with  other  funds  of  the  estate,  can  make 
no  difference.  The  amount  is  certain,  and  they  needed  no 
earmark  to  distinguish  them  from  other  money  of  the  tes- 
tator. In  re  Hood's  Estate  51  shows  clearly  that  if  the  prop- 
erty is  not  liable  to  tax  at  the  death  of  the  testator,  wher- 

48  As  to  taxation  of  real  property  in  Pennsylvania  as  against  non- 
residents, eta,  see  In  re  Coleman's  Estate  (1893)  159  Pa.  St.  231,  28 
Atl.  137;    In  re  Small's  Estate,  151  Pa.  St.  1,  25  Atl.  23,  28. 

49  Drayton's  Appeal,  61  Pa.  St.  172;  Com.  v.  Coleman,  52  Pa.  St.  46S; 
In  re  Hood's  Estate,  21  Pa.  St.  106. 

so  Drayton's  Appeal,  supra. 
6i  21  Pa.  St.  106. 

(157) 


§    46  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.   4 

ever  it  is,  the  bringing  of  it  into  the  state  does  not  make 
it  so."  The  domicile  of  any  one  is  presumed  to  continue 
until  it  is  changed  by  acquiring  a  domicile  elsewhere.  No 
temporary  sojourn  in  a  foreign  country  will  effect  such 
change.52 

So  the  declaration  of  a  decedent  in  his  will,  made  five 
years  before  the  tax  was  imposed,  that  he  was  a  resident 
of  New  York,  is  controlling,  in  the  absence  of  positive  proof 
to  the  contrary.53 

Under  the  acts  of  congress,  it  was  held  that  where  the 
testator  had  abandoned  his  residence  in  this  country,  and 
taken  up  a  foreign  domicile,  the  legacies  provided  for  in  his 
will  were  not  subject  to  the  tax,  but  upon  the  express 
ground  that  there  was  no  intention  to  tax  nonresident  es- 
tates.54 

But  under  the  English  law  the  estates  of  English  sub- 
jects dying  abroad,  where  they  intended  making  their  domi- 
cile, are  liable  to  the  legacy  tax,  unless  there  is  evidence 
also  showing  that  they  had  actually  obtained  a  foreign 
domicile  at  the  time  of  death.55 

And,  notwithstanding  such  change  of  domicile  is  effect- 
ed, in  such  event  certain  estates  may  be,  nevertheless,  liable 
to  succession  duty.56 

52  As  to  what  constitutes  such  change,  see  In  re  Hood's  Estate.  21 
Pa.  St.  106. 

53  in  re  Hughes,  N.  Y.  Daily  Reg.  July  27,  1889. 

54  TJ.  S.  v.  Morris,  27  Fed.  341;  U.  S.  v.  Hunnewell,  13  Fed.  617, 
and  note,  page  618;    San  Francisco  v.  Mackey,  22  Fed.  602. 

55  Udny  v.  Udny  (1869)  L.  R.  1  H.  L.  Sc.  441;  Attorney  General  v. 
Dunn,  6  Mees.  &  W.  526;  Attorney  General  v.  Napier,  6  Exch.  217; 
Hamilton  v.  Dallas,  L.  R.  1  Ch.  Div.  257;  Attorney  General  v.  Wahl- 
statt,  3  Hurl.  &  C.  374;  In  re  Too  tail's  Trust,  L.  R.  23  Ch.  Div.  532; 
In  re  Capdevielle,  2  Hurl.  &  C.  985. 

56  Attorney  General  v.  Wahlstatt  and  In  re  Capdevielle,  supra. 

(158) 


Ch.   4]  RESIDENT    AND    NONRESIDENT    DECEDENTS.  §    4.7 

§  47.     Nonresident  Decedents,  Their  Heirs  and 
Legatees. 

(a)  The  English  Rule,  "  Mobilia  Sequuntur  Personam." 

We  have  already  seen  B7  that  two  statutes  in  England 
regulate  the  duty  or  tax  upon  gifts,  legacies,  and  succes- 
sions. While  these  statutes  were  evidently  meant  to,  and 
do,  cover  almost  every  conceivable  form  of  transfer,  whether 
inter  vivos,  or  by  will  or  intestacy,  curiously  enough,  both 
of  these  enactments — especially  the  legacy  act — have  been 
found  to  be  most  incomplete  and  defective,  so  far  as  the 
liability  of  the  personal  property  within  English  territory 
of  nonresident  and  alien  decedents  is  concerned;  and  not- 
withstanding it  is  conceded,  in  cases  involving  such  liabil- 
ity, that  parliament  has  the  undoubted  power  to  impose 
these  taxes  upon  the  estates  of  such  foreign  decedents,58 
yet,  by  force  of  a  construction  placed  upon  these  statutes 
under  the  fiction  of  law,  the  intention  on  the  part  of  the 
legislature  to  tax  such  estates  under  the  legacy  act  has 
been  denied  by  all  the  judges  in  the  house  of  lords.59 

On  the  other  hand,  under  the  succession  act,  while,  with 
respect  to  simple  legacies,  the  same  rule  has  been  adopted, 
personal  estates  held  in  trust  in  England  by  English  trus- 
tees, subject  to  local  courts,  have  been  taxed,  notwithstand- 
ing all  the  parties  were  aliens.60 

'  67  Chapter  1. 

68  Wallace  v.  Attorney  General,  L.  R.  1  Ch.  App.  1,  per  Lord  Chan- 
cellor Cranworth;    In  re  Badart,  L.  R.  10  Eq.  288. 

69  Thompson  v.  Advocate  General,  12  Clark  &  F.  1;  overruling  At- 
torney General  v.  Cockerill,  1  Price,  165;  Attorney  General  v.  Beet- 
son,  7  Price,  560.  And  see  these  cases  criticised  in  State  v.  Dalryni- 
ple,  70  Md.  294,  17  Atl.  82;  Alvany  v.  Powell,  2  Jones,  Eq.  51;  In 
re  Clark's  Estate  (Surr.)  9  N.  Y.  Supp.  444. 

60  in  re  Lovelace,  4  De  Gex  &  J.  340;  In  re  Wallop's  Trust,  1  De 
Gex,  J.  &  S.  656. 

(159) 


§   47  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.  4 

The  result  of  a  construction  which  thus  exempted  for- 
eign estates  in  England  from  the  tax  under  the  legacy  act, 
arising  from  a  strict  adherence  to  the  maxim,  "Mobil ia  se- 
quuntur  personam,"  and  the  relaxation  of  the  rule  under 
the  succession  act,  has  obviously  been  to  cause  confusion 
and  a  want  of  harmony  among  the  cases  under  these  stat- 
utes, and,  as  we  shall  hereafter  see,  has  provoked  judicial 
criticism  both  in  that  country  61  and  in  America,  where,  in 
many  instances,  these  cases  have  been  substantially  re- 
jected as  authorities.62 

Under  the  legacy  act,  it  was  originally  held  that  legacies 
left  by  a  person  domiciled  in  a  foreign  country,  where  the 
will  was  proved  and  administration  of  the  estate  had,  if 
remitted  to  England,  to  the  legatees,  were  liable  to  the  tax, 
upon  the  theory  that  there  was  a  new  administration 
there.63 

The  principle  announced  in  the  earlier  cases  under  the 
legacy  acts,  however,  was  not  strictly  followed  where  the 
assets  of  a  foreign  estate  were  brought  into  the  kingdom 
after  decedent's  death,  to  pay  legatees,  or  for  any  other  pur- 
pose;  for  the  court  held  that  it  was  not  liable,  upon  the 

ei  Lyall  v.  Lyall  (1872)  L.  R.  15  Eq.  1;  criticising  Wallace  v.  At- 
torney General,  supra. 

ea  State  v.  Dairy  mple,  70  Md.  294,  17  Atl.  82;  Alvany  v.  Powell,  2 
Jones,  Eq.  51;  In  re  Clark's  Estate  (Surr.)  9  N.  Y.  Supp.  444;  In  re 
Romaine,  127  N.  Y.  86,  27  N.  E.  759;  48  Phila.  Leg.  Int.  265.  But 
see  In  re  James,  144  N.  Y.  6,  38  N.  E.  961;  In  re  Phipps,  77  Hun, 
325,  28  N.  Y.  Supp.  330;  In  re  Vinot's  Estate  (Surr.)  7  N.  Y.  Supp. 
517.  See  In  re  Enston,  113  N.  Y.  183,  21  N.  E.  87;  Pullman's  Palace 
Car  Co.  v.  Pennsylvania  (1891)  141  U.  S.  18,  22,  11  Sup.  Ct.  876,  af- 
firming 107  Pa.  St.  156. 

63  Attorney  General  v.  Cockerill,  1  Price,  165;  Attorney  General 
v.  Beetson,  7  Price,  819.  See  In  re  Alexander's  Estate,  3  Pa.  Law  J. 
R.  (Clark)  87,  *448;  In  re  Romaine,  supra.  But  probate  duty,  it  was 
held,  would  not  have  been  payable.  Attorney  General  v.  Hope  (1830) 
1  Cromp.,  M.  &  R.  520;  Attorney  General  v.  Napier  (1851)  6  Excb.  217; 
Forbes  v.  Steven,  L.  R.  10  Eq.  186. 
(160) 


Ch.   4]         RESIDENT    AND    NONRESIDENT    DECEDENTS.  §    47 

grounds  stated  by  Lord  Cottinham, — that  the  act  referred 
merely  to  persons  and  wills  and  personal  estates  within  the 
limits  of  the  kingdom.64 

None  of  these  cases  made  the  distinction  "between  domi- 
cile, residence,  or  situs65  until  1830,  when66  the  doctrine 
was  first  broached  that  the  true  criterion  whether  the  par- 
ties were  liable  to  legacy  duty  depended  upon  the  fact 
whether  the  testator,  at  the  time  of  his  death,  was  domi- 
ciled in  England,  and  the  maxim  that  the  personal  property 
followed  the  person  of  the  owner  was  adopted.67 

Finally,  in  1845,  the  house  of  lords  declared,  applying  this 
maxim  in  its  full  force,  that  an  English  subject  domiciled 
in  a  British  colony,  who  was  at  the  time  entitled  to  a  debt 
due  in  Scotland,  and  whose  administrators  took  out  letters 
in  that  country,  collected  the  debt,  and  paid  the  legatees 
with  the  proceeds  in  the  latter  country,  was  not  liable  to 
legacy  duty.68 

All  the  judges  agreed  that  the  statute,  notwithstanding 
its  general  words,  "every  legacy  given  by  any  will  or  testa- 
mentary instrument  of  any  person,"  was  limited,  and  did 
not  extend  to  the  will  of  any  person  who  at  the  time  of  his 
death  was  domiciled  out  of  Great  Britain,  whether  the  as- 
sets were  locally  situate  within  England  or  not,  and  that 
the  debt  only  formed  part  of  the  personal  property  of  the 
testator,  and  that  the  liability  to  the  duty  did  not  depend 
on  the  executor  proving  the  will  in  England,  nor  upon  his 
administration  there,   but  the  question,  according  to  the 

64  Arnold  v.  Arnold,  2  Mylne  &  C.  270;  Attorney  General  v.  Forbes, 
2  Clark  &  F.  48;  Attorney  General  v.  Jackson,  8  Bligh,  15.  But  see 
Attorney  General  v.  Campbell  (1872)  L.  R.  5  H.  L.  524. 

6  5  Attorney  General  v.  Napier,  6  Excb.  217. 

6  6  in  re  Ewing,  1  Cromp.  &  J.  151;  following  Bruce  v.  Bruce,  2 
Bos.  &  P.  229.    See,  also,  In  re  Bruce,  2  Cromp.  &  J.  436. 

67  Attorney  General  v.  Napier,  supra;  Thomson  v.  Advocate  Gen- 
eral, 13  Sim.  153,  12  Clark  &  F.  1. 

68  Thomson  v.  Advocate  General,  12  Clark  &  F.  1. 

LAW  INHER. 11  (161) 


§   47  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.   4 

lord  chancellor,  turned  upon  the  meaning  of  the  statute 
limiting  its  operation  to  Great  Britain.60 

So  far  as  this  doctrine  applied  to  a  British  subject,  Lord 
Brougham,70  who  seemed  to  have  entertained  doubts  upon 
the  question,  said,  "I  believe  that  if  the  chancellor  of  the 
exchequer,  who  introduced  this  bill  into  parliament,  had 
been  asked  his  opinion,  he  would  have  been  a  good  deal 
surprised  to  hear  that  he  was  not  to  have  his  legacy  duty 
on  such  a  fund  as  this,  where  the  testator  was  a  British- 
born  subject,  and  had  merely  acquired  a  foreign  domicile"; 
and  he  observed  that  the  doctrine  of  domicile  was  of  recent 
growth,  and  that  neither  the  legislature  nor  the  judges 
thought  much  of  it 

As  a  necessary  consequence  or  converse  of  this  rule,  it 
was  held  that  where  a  testator  died  domiciled  in  England, 
though  residing  temporarily  abroad  at  the  time  of  death, 
the  duty  was  payable  on  his  personal  estate,  though  situat- 
ed abroad.71 

So  the  legacy  duty  was  held  payable  upon  the  share  of  a 
deceased  partner  —  a  domiciled  Englishman  —  in  the  pro- 
ceeds of  freehold  property  abroad,  used  there  for  the  pur- 
poses of  the  partnership,  and  forming  an  asset  thereof,  upon 
the  ground  that,  as  between  the  partners,  the  real  property 
was,  in  law,  considered  as  personalty.72 

The  same  rule  was  subsequently  considered  and  applied  73 
with  reference  to  the  succession  duty,74  where  there  were 

69  12  Clark  &  P.  20. 

7  0  12  Clark  &  F.  28. 

7i  Attorney  General  v.  Napier,  6  Exch.  217;  Lord  Cranworth,  In 
Wallace  v.  Attorney  General,  L.  R.  1  Ch.  App.  1.  See,  also,  Attor- 
ney General  v.  Dunn  (1S40)  6  Mees.  &  W.  526;  In  re  Coales  (1S41) 
7  Mees.  &  W.  390;    Arnold  v.  Arnold,  2  Mylne  &  C.  256. 

72  Forbes  v.  Steven  (1870)  L.  R.  10  Eq.  178;  Custance  v.  Brad- 
shaw,  4  Hare,  315. 

73  Wallace  v.  Attorney  General,  supra. 

74  16  &  17  Vict.  c.  51. 

(102) 


•Cll.   4]         RESIDENT    AND    NONRESIDENT    DECEDENTS.  §    47 

legacies  payable  under  the  will  of  a  foreigner  to  legatees  in 
England,  the  estate  there  consisting  both  of  real  and  per- 
sonal property  in  the  hands  of  English  executors.  Lord 
Chancellor  Cranworth,  in  holding  that  there  was  no  inten- 
tion to  tax  such  estate,  and  referring  to  certain  practical 
difficulties  in  the  way  of  such  taxation,  said:  "The  statute 
was  passed  only  about  eight  years  after  the  decision  of  the 
house  of  lords  in  Thompson  v.  Advocate  General,76  and 
when  the  nonliability  to  legacy  duty  of  legatees  under  the 
will  of  persons  not  domiciled  in  this  country  had  been  fully 
established  after  having  for  a  long  time  previously  given 
rise  to  much  discussion.  I  can  hardly  think  that  the  legis- 
lature intended  by  a  side  wind,  as  it  were,  and  without  any 
preamble  of  its  intention,  to  do  what,  without  exciting  at- 
tention, would  practically  operate  as  a  reversal  of  that 
which,  after  frequent  discussions  in  the  different  courts,  had 
established  the  rights  of  persons  claiming  as  legatees  under 
foreign  wills.  Parliament  has,  no  doubt,  the  power  of  tax- 
ing the  successions  of  foreigners  to  their  personal  property 
in  this  country;  but  I  can  hardly  think  that  we  ought  to 
presume  such  an  intention,  unless  it  is  clearly  stated."  7<J 

But  what  would  seem  to  be  a  wide  departure  from  the 
rule  of  domicile,  as  originally  declared,  and  as  conflicting 
with  this  case,  had  been  previously  made  in  several  deci- 
sions, and  the  court  was  compelled  to  declare  that  its  deci- 
sion did  not  conflict  with  these  cases.77 

Hence,  under  the  succession  act,  an  exception  was  estab- 

75  12  Clark  &  P.  1. 

76  To  same  effect,  In  re  Enston's  Will,  113  N.  Y.,  at  page  181,  21  N. 
E.  87,  and  In  re  Tulane,  51  Hun,  213,  4  N.  Y.  Supp.  36,  both  of  which 
were  decided  under  the  New  York  act  of  1SS5;  In  re  Romaine,  127 
N.  Y.  86,  27  N.  E.  759.  See  In  re  James,  144  N.  Y.  6,  38  N.  E.  961; 
In  re  Phipps,  77  Hun,  325,  28  N.  Y.  Supp.  330. 

77  See  In  re  Lovelace  (1870)  4  De  Gex  &  J.  340;  In  re  Wallop's 
Trust  (1S64)  1  De  Gex,  J.  &  S.  656. 

(163) 


§   47  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.  4 

lished,  as  regards  a  class  of  cases  in  which  personal  prop- 
erty was  held  in  trust,  or  under  marriage  settlements,  by 
English  trustees,  subject  to  English  courts,  notwithstand- 
ing, in  some  instances,  all  the  beneficiaries  were  aliens  re- 
siding or  dying  abroad,  the  mere  legal  title  being  vested  in 
the  trustees.  And  it  was  held  that  the  property  in  England 
was  liable  to  the  succession  tax,  though  not  to  the  legacy 
duty.78 

In  Re  Cigala,  where  the  exception  was  followed,  Jessel,  M. 
B.,  said:  "On  what  ground  is  it  contended  that  no  duty 
is  payable?  It  is  said  that  the  English  government  does 
not  tax  foreigners,  but  only  Englishmen.  As  a  proposition 
of  law,  I  am  not  prepared  to  assent  to  that.  There  are  very 
many  cases  in  which  the  English  government  does  tax  for- 
eigners. We  have  a  very  familiar  instance  in  the  case  of 
a  foreigner  with  a  British  domicile  dying  intestate  as  to 
personal  estate,  leaving  foreign  next  of  kin,  or  dying  testate 
as  to  personal  property,  and  giving  the  whole  of  it  to  for- 
eigners. There  the  next  of  kin  or  residuary  legatee  pays 
duty  out  of  the  property,  though  the  personal  property  in 
question  may  be  situate  abroad,  the  right  to  the  property 
being  the  right  of  the  testator  or  intestate;  for,  according 
to  the  rule  of  law,  'Mobilia  sequuntur  personam,'  the  right 
to  the  property  is  a  right  governed  by  the  domicile  of  the 
testator  or  intestate.  In  that  case  it  is  quite  clear  that  a 
foreigner  is  taxed  by  the  English  law,  though  the  property 
is  actually  situated  abroad ;  and  therefore  it  is  not  true,  as 
a  universal  rule,  that  English  legislation  does  not  tax  for- 
eigners." 

7  8  in  re  Lovelace,  supra;  In  re  Wallop's  Trust,  supra.  See,  also,  In 
re  Cigala,  7  Ch.  Div.  356;  Attorney  General  v.  Fitzjohn  (1857)  2  Hurl. 
&  N.  465;  Lyall  v.  Lyall  (1872)  L.  R.  15  Eq.  1,  criticising  Wallace  r. 
Attorney  General,  L.  R.  1  Ch.  App.  1;  In  re  Badart,  L.  R.  10  Eq. 
288.  See,  also,  Attorney  General  v.  Campbell  (1S72)  L.  R.  5  H,  L. 
524;  In  re  Smith's  Will  (1SG4)  12  Wkly.  Rep.  933. 
(164) 


Ch.   4]         RESIDENT    AND    NONRESIDENT    DECEDENTS.  §    47 

The  doctrine  thus  established  under  the  succession  act, 
though  more  in  accordance  with  reason  and  justice,  has 
been  criticised  as  being  in  conflict  with  the  rule  announced 
under  the  legacy  act.  "I  must  state,"  says  Romilly,  M.  R.,70 
"that  it  appears  to  me  that  the  distinction  drawn  between 
the  two  statutes  is  extremely  thin,  and  that  the  arguments 
against  legacy  duty,  as  stated  in  Thompson  against  Advo- 
cate General,80  apply  with  equal  force  to  the  words  of  this 
statute,  as  regards,  at  all  events,  property  locally  situated 
abroad;  and  it  is  to  be  remembered  that  that  case  was  not 
heard  ex  parte,  but  was  twice  argued  before  the  house  of 
lords,  and  that  it  was  not  only  the  opinion  of  that  tribunal, 
consisting  of  Lords  Lyndhurst,  Brougham,  and  Campbell, 
but  it  was  so  after  taking  the  opinion  of  Chief  Justice  Tin- 
dal  and  seven  other  judges." 

And  recently  it  has  been  adjudged  that  the  personal 
property  bequeathed  by  a  foreigner  not  domiciled  in  Eng- 
land, while  not  in  the  first  instance  liable  to  legacy  or  suc- 
cession duty,  becomes  liable  where  the  executor  directed  to 
collect  foreign  property  invested  in  England  has  discharged 
the  duty  imposed  upon  him,  and  any  subsequent  devolution 
of  it  is  liable  to  succession  duty,  though  the  party  on  whom 
it  may  devolve  be,  like  the  testator,  domiciled  abroad,  and 
that  the  liability  to  legacy  duty  of  real  estate  in  England 
is  not  affected  by  domicile.81 

And  the  rule  has  recently  been  strongly  reiterated  in 
England,  under  the  legacy  act,  by  Mr.  Justice  Chitty,  that 
the  question  of  liability  to  the  duty  depends  solely  upon 
that  of  domicile  of  the  testator  or  intestate  at  the  time  of 
death,  and  that  the  circumstance  that  the  personal  prop- 

7  9  Lyall  v.  Lyall  (1872)  L.  R.  15  Eq.  1. 

so  12  Clark  &  F.  1. 

si  Chatfield  v.  Berchtoldt,  L.  R.  7  Ch.  App.  192;  Attorney  General 
v.  Campbell  (1872)  L.  R.  5  H.  L.  524.  See,  also,  In  re  Badart,  L.  R. 
10  Eq.  28S. 

(165) 


§   47  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.   4 

erty  was  locally  situate  in  that  country,  or  sent  there  to  be 
paid  to  legatees,  was  immaterial,  and  that  the  fact  that  the 
will  was  not  proved  in  England  made  no  difference  when 
the  domicile  was  English.82 

So  English  subjects  dying  abroad  are  liable  to  the  legacy 
tax,  unless  it  clearly  appears  that  they  had  an  actual  domi- 
cile in  a  foreign  state  at  the  time  of  death.83 

And  a  foreigner  acquiring  a  domicile  in  England  becomes 
liable  to  the  duty.84 

Under  the  succession  act,  the  word  "property"  has  been 
held  to  include  stocks  and  shares  in  foreign  governments 
transferable  abroad,  the  certificates  for  which  were  merely 
held  in  England  by  trustees.85 

Under  the  probate  duty  act,  such  foreign  bonds  and  se- 
curities as  are  marketable  commodities  in  England,  or  pass 
by  delivery  from  hand  to  hand,  are  liable  to  duty,  but  the 
rule  is  different  where  the  stocks  are  registered  in  foreign 
countries.86 

(b)  Application  of  the  Rule  in  America. 

We  have  already  discussed  the  question  as  to  the  power 
of  the  state  to  impose  succession  or  legacy  taxes  upon  prop- 
erty within  its  jurisdiction  passing  by  will  or   intestate 

82  in  re  Tootal's  Trusts,  23  Ch.  Div.  532.  See  In  re  Strong  (Aug., 
1894)  17  N.  J.  Law  ,T.  234. 

83  Udny  v.  Udny  (1869)  L.  R.  1  H.  L.  Sc.  441;  Attorney  Gen- 
eral v.  Dunn,  6  Mees.  &  W.  526;  Attorney  General  v.  Napier,  6 
Exch.  217;  Attorney  General  v.  WaMstatt,  3  Hurl.  &  C.  374;  In  re 
Capdevielle,  2  Hurl.  &  C.  985;   In  re  Tootal's  Trusts,  23  Ch.  Div.  532. 

84  As  to  what  facts  are  sufficient  to  show  a  change  of  domicile,  see 
cases  cited  supra  and  Hamilton  v.  Dallas,  1  Ch.  Div.  257. 

8  5  in  re  Cigala,  7  Ch.  Div.  356.  Contra,  In  re  Enston,  113  N. 
Y.  181,  21  N.  E.  87;  Orcutt's  Appeal,  97  Pa.  St.  185.  See  In  re 
Romaine,  127  N.  Y.  86,  27  N.  E.  759;  In  re  James,  144  N.  Y.  6,  38  N. 
E.  961. 

86  Attorney  General  v.  Bouwens,  4  Mees.  &  W.  171. 
(166) 


Ch.   4]         RESIDENT    AND    NONRESIDENT    DECEDENTS.  §    47 

law.87  And,  while  the  administration  and  distribution  of 
the  personal  estate  of  a  nonresident  decedent  are  regulated 
by  the  law  of  the  owners  domicile,  in  this  country  the 
maxim  of  "Mobilia  sequuntur  personam"  has  not  been 
adopted  or  applied,  in  its  full  force,  as  against  the  state, 
upon  questions  of  taxation;  in  fact,  in  some  cases  it  has 
been  entirely  rejected,  as  wholly  inapplicable. 

In  some  states  this  result  has  been  reached  either  by  a 
construction  placed  upon  the  statutes  on  grounds  of  public 
policy,  favoring  equality,  and  to  prevent  unjust  discrim- 
ination between  estates  of  resident  and  nonresident  de- 
cedents, and  in  others  by  express  legislation,  and  the  tax 
has  been  imposed  upon  both  the  real  and  personal  property, 
tangible  and  intangible,88  of  nonresident  or  alien  decedents 
actually  within  the  taxing  state  at  the  time  of  death,  wheth- 
er or  not  there  be  legatees  or  heirs  within  the  state.  In 
such  cases  the  theory  seems  to  be  that  for  the  purposes  of 
this  tax  the  succession  is  deemed  to  take  place  under  the 
law  of  the  taxing  state,  in  reaching  which  result  the  courts 
have  leaned  towards  the  actual  or  real  situs  of  property, 
having  a  visible  and  tangible  existence,  rather  than  to  the 
mere  domicile  of  the  owner. 

Such  would  seem  to  be  the  law  of  Maryland,  Maine,  North 

87  See  chapter  2,  §  23;  State  v.  Dalrymple,  70  Md.  294,  17  Atl.  S2; 
Wallace  v.  Attorney  General,  1  Ch.  App.  1;  Alvany  v.  Powell,  2  Jones, 
Eq.  51;  In  re  Enston,  113  N.  Y.  184,  21  N.  E.  87;  In  re  McPherson, 
104  N.  Y.  316,  10  N.  E.  685;  In  re  Romaine,  127  N.  Y.  S6,  27  N.  E. 
759;  In  re  James,  144  N.  Y.  6,  38  N.  E.  961,  affirming  77  Hun,  213, 
28  N.  Y.  Supp.  351,  and  6  Misc.  Rep.  206,  27  N.  Y  Supp.  2SS;  In  re 
Bittinger's  Estate,  129  Pa.  St.  338,  18  Atl.  132;  In  re  Small's  Estate. 
151  Pa.  St.  1,  25  Atl.  23.  See  note  to  32  Am.  Law  Reg.  (N.  S.)  365, 
and  cases  cited. 

ss  See  Appendix  rV.-VIL,  statutes  of  Connecticut,  Maine,  Massa- 
chusetts, and  Ohio. 

(167) 


§   47  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.  4 

Carolina,  New  York,  Connecticut,  Massachusetts,  and 
Ohio.89 

In  Connecticut  the  tax,  under  a  very  comprehensive 
statute,  is  expressly  applied  to  tangible  and  intangible  prop- 
erty.90 

The  state  has  power  to  give  tangible  personal  property 
a  special  situs  for  the  purpose  of  taxation.91 

In  North  Carolina  the  question  was  early  considered  un- 
der a  statute  providing  for  a  tax  upon  the  descent  or  be- 
quest of  real  estate  and  personal  property  passing  to  stran- 

89  Real  and  leasehold  estate  in  England  is  taxed  irrespective  of 
domicile.     Chatfield  v.  Berchtoldt,   7  Ch.   App.   192. 

so  Pub.  Laws  Conn.  1889,  c.  180,  Appendix  VII.  No  decision  seems 
to  have  been  made  as  yet  construing'  this  statute.  The  same  pro- 
visions are  contained  in  the  statutes  of  Massachusetts,  Maine,  and 
Ohio.  Alvany  v.  Powell,  2  Jones,  Eq.  51;  State  v.  Brevard,  Phil.  Eq. 
141;  State  v.  Brim,  4  Jones,  Eq.  301;  State  v.  Dalrymple,  70  Md.  294, 
17  Atl.  82;  In  re  Enston's  Will,  113  N.  Y.  183,  21  N.  E.  87;  In  re  Vinot 
(Surr.)  7  N.  Y.  Supp.  517;  In  re  Clark  (Surr.)  9  N.  Y.  Supp.  444;  In  re 
Romaine,  127  N.  Y.  80-88,  27  N.  E.  759.  See,  also,  In  re  Duckworth 
(July  3,  1891)  5  N.  Y.  Law  J.  8G4;  In  re  Morejon,  Id.  864;  In  re  Bou- 
don  (March  1,  1892)  6  N.  Y.  Law  J.  1322.  Regarding  stocks  and  bonds 
of  foreign  corporations  belonging  to  nonresident  decedents,  see  In  re 
James  (1894)  144  N.  Y.  6,  38  N.  E.  961,  affirming  77  Hun,  213,  28  N.  Y. 
Supp.  351;  In  re  Thomas,  3  Misc.  Rep.  388,  24  N.  Y.  Supp.  713;  In  re 
Coming's  Estate,  3  Misc.  Rep.  160,  23  N.  Y.  Supp.  285;  In  re  Phipps, 
77  Hun,  325,  28  N.  Y.  Supp.  330;  Laws  N.  Y.  1887,  c.  713,  as  amending 
Laws  1885,  c.  483,  Appendix,  I.  See,  also,  an  article  by  E.  H.  Blanc, 
Esq.,  in  45  Alb.  Law  J.  April  16,  1892,  p.  331,  entitled  "Collateral  In- 
heritance Tax  in  Connection  with  Transfer  of  Stocks  and  Loans  by 
Foreign  Executors  and  Administrators,"  reviewing  the  law  of  New 
York. 

9i  Cooley,  Tax'n  (2d  Ed.)  23;    citing  American  Coal  Co.  v.  County 
Com'rs  of  Allegany  Co.,  59  Md.  1S5;    Mayor,  etc.,  of  Baltimore  v. 
Baltimore  City  Passenger  R.  Co.,  57  Md.  31. 
(168) 


Ch.  4]        RESIDENT    AND    NONRESIDENT    DECEDENTS.  §    47 

gers  or  collateral  kindred.  In  that  case02  the  decedent 
was  a  foreigner,  and  died  abroad  intestate,  leaving  prop- 
erty in  the  state.  The  authorities  under  the  English  legacy 
act  were  considered  and  rejected,  and  it  was  held  that  the 
principle  by  which  a  distinction  was  made  between  persona] 
property  and  real  estate,  so  that  in  regard  to  the  former 
a  construction  depending  upon  the  domicile  of  the  owner 
was  adopted,  was  based  upon  a  fiction  that  had  no  applica- 
tion to  questions  of  revenue,  but  merely  applied  to  the  dis- 
tribution of  the  personal  estates  of  deceased  persons,  and  it 
was  claimed  that  it  never  had  any  application  where  the 
rights  of  creditors  were  concerned.93 

Pearson,  J.,  said:04  "The  notion  upon  which  the  princi- 
ple of  the  domicile  is  based — that  personal  property  attends 
the  person,  and  is  where  the  owner  lives — is  a  mere  fiction, 
and  its  very  restricted  application  rests  upon  the  comity  of 
nations;  but  in  collecting  debts  and  taxes  we  must  pro- 
ceed upon  the  fact,  and  consider  the  property  as  being  where 
it  actually  is.  In  other  words,  the  situs  of  the  property 
must  be  the  governing  principle."  °5 

92  Alvany  v.  Powell  (1854)  supra;  criticising  Thomson  v.  Advocate 
General,  12  Clark  &  F.  1,  and  other  English  cases. 

9  3  Story,  Confl.  Law,  354;   Moye  v.  May,  8  Ired.  Eq.  131. 

»4  2  Jones,  Eq.  57,  supra. 

95  That  the  fiction  is  simply  based  on  considerations  of  comity,  see 
Catlin  v.  Hull,  21  Vt.  158,  approved  in  Hoyt  v.  Commissioners,  23  N. 
Y.  232;  Wharf.  Priv.  Int.  Law,  §§  11,  13-297;  Green  v.  Van  Buskirk, 
7  Wall.  150;  Hervey  v.  Locomotive  Works,  93  U.  S.  664;  Lewis  v. 
Woodford,  58  Team  25;  Birtwhistle  v.  Vardill,  5  Barn.  &  C.  438  151. 
See  the  whole  question  discussed  in  He  Komaine,  127  N.  Y.  80,  27  N.  E. 
759;  48  Phila.  Leg.  Int.  265;  criticised  in  Alb.  Law.  J.  Dec.  12,  1891, 
p.  ITS.  See  Alb.  Law.  J.  April  16,  1892,  p.  331.  See  In  re  James, 
144  N.  Y.  6,  38  N.  E.  961;  Id.,  77  Hun,  213,  28  N.  Y.  Supp.  351;  In  re 
Phipps,  77  Hun,  325,  28  N.  Y.  Supp.  330,  affirmed  143  N.  Y.  641,  37  N. 
E.  823  (no  opinion). 

(109) 


§   47  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.  4 

Precisely  the  same  views  have  been  announced  in  New 
York,  under  general  tax  laws.98 

So  the  question  has  been  considered  under  the  Maryland 
statute,97  with  reference  to  the  liability  of  a  nonresident  de- 
cedent, who  at  the  time  of  his  death  owned  certain  stocks, 
bonds,  and  cash,  proceeds  of  the  estate  of  his  deceased 
brother  in  that  state,  and  whose  legatee — a  stranger  to  the 
blood — resided  outside  of  the  state.  McSherry,  J.,  said: 
"No  reason  has  been  assigned,  or  can  be  suggested,  why  the 
broad  language  of  the  statute,  and  the  evident  design  of  the 
legislature,  should  be  so  narrowed  and  restricted  as  to  ex- 
empt from  this  tax  the  estate  of  a  nonresident  actually 
here,  notwithstanding  that  same  property  may,  for  other 
purposes  be  treated  as  constructively  elsewhere.  If  we 
adopt  the  view  insisted  on  by  the  appellees,  it  will  result  in 
a  discrimination  in  favor  of  nonresidents  and  against  our 
own  citizens, — a  discrimination,  too,  which  the  legislature 
certainly  never  intended  to  make,  and  for  which  no  warrant 
can  be  found  in  the  plain  letter  of  the  statute.  In  permit- 
ting property  within  the  state,  on  the  death  of  its  owner,  to 
pass  by  devise,  or  descent,  or  distribution,  the  legislature 
has  seen  fit,  where  strangers  or  collateral  kindred  received 
it,  to  exact,  as  the  condition  upon  which  that  privilege  is 
granted,  the  tax  in  question.  The  imposition  and  collec- 
tion of  the  tax,  therefore,  cannot  depend  upon  the  mere  in- 
cidental residence  of  the  owner."  98 

The  court  distinguished  the  English  cases  upon  the 
ground  that  there  was  no  intention,  as  declared  in  those 

ss  Hoyt  v.  Commissioners,  supra;  Graham  v.  Bank,  84  N.  Y.  400. 
See  People  v.  Coleman,  119  N.  Y.  139,  23  N.  E.  488;  People  v.  Bar- 
ker, 135  N.  Y.  656,  32  N.  E.  252. 

9  7  state  v.  Dalrymple,  70  Md.  294,  17  Atl.  82. 

98  And  see  opinion  of  Woodward,  C.  J.,  in  Foreign  Bond  Tax  Cases 
(Pa.  Sup.  Ct.)  15  Wall.  305,  and  cases  cited  supra. 
(170) 


Ch.   4]        RESIDENT    AND    NONRESIDENT    DECEDENTS.  §   47 

cases,  on  the  part  of  the  legislature,  to  impose  the  tax  on 
the  estates  of  alien  or  nonresident  decedents." 

And  the  same  criticism  applies  to  other  cases  decided 
under  these  statutes, — that  there  was  no  intention  to  tax 
such  nonresident  property,  and  the  result  in  such  cases  will 
be  found  to  be  predicated  solely  upon  this  ground,  and  the 
fiction  of  law  thus  held  applicable.100 

So  the  treaty  of  France  with  the  United  States  does  not 
relieve  citizens  of  France  leaving  property  here  at  their 
death  from  the  New  York  inheritance  tax.  The  treaty  of 
1853  provides:    "In  all  states  of  the  Union  whose  existing 

so  Citing  and  reviewing  Citizens'  Nat.  Bank  v.  Sharp,  53  Md.  521; 
Orcutt's  Appeal,  97  Pa.  St.  179;  Attorney  General  v.  Hope,  1  Cromp., 
M.  &  R.  530;  Attorney  General  v.  Cockerell,  1  Price,  165;  Attorney 
General  v.  Beetson,  7  Price,  5G0;  Thomson  v.  Advocate  General,  12 
Clark  &  F.  1 ;   Wallace  v.  Attorney  General,  L.  R.  1  Ch.  App.  1. 

ioo  u.  S.  v.  Hunnewell,  13  Fed.  017;  U.  S.  v.  Morris,  27  Fed.  341. 
See  Com.  v.  Chesapeake  &  O.  R.  Co.,  27  Grat.  354;  Orcutt's  Appeal, 
97  Pa.  St.  1S5;  Del  Busto's  Estate,  23  Wkly.  Notes  Cas.  Ill;  In  re 
Bacon's  Estate,  3  Del.  Co.  Rep.  603;  In  re  Tulane,  51  Hun,  213,  4 
N.  Y.  Supp.  36;  In  re  Enston's  Will,  113  N.  Y.  181,  21  N.  E.  87, 
where  Andrews,  J.,  said  that  "the  fiction  must  prevail  unless  there  is 
something  in  the  policy  of  the  statute  or  its  language  which  shows  a 
different  legislative  intent."  Notwithstanding  the  ruling  in  Re  Ro- 
maine,  127  N.  Y.  SO,  27  N.  E.  759,  the  fiction  has  been  applied  to 
stocks  and  bonds  of  foreign  corporations  within  the  state  belonging 
to  a  deceased  nonresident,  the  court  holding  that,  there  being  no  in- 
tention in  the  act  of  1887  (chapter  713)  to  tax  these  securities,  the 
fiction  prevailed,  and  they  were  presumed  to  be  at  the  domicile  of 
the  owner.  In  re  James  (1894)  144  N.  Y.  6,  38  N.  E.  961,  affirm- 
ing 77  Hun,  213,  28  N.  Y.  Supp.  351;  distinguishing  In  re  Romaine, 
supra.  See  elaborate  article  on  the  subject  in  Alb.  Law  J.  April  16, 
1892,  p.  331.  This  would  seem  to  overrule  In  re  Duckworth  (July  3, 
1891)  5  N.  Y.  Law  J.  864;  In  re  Morejon  (July  31,  1891)  Id.;  In  re 
Bondon  (March  1,  1892)  6  N.  Y.  Law  J.  1322.  See,  also,  In  re  Phipps, 
77  Hun,  325,  28  N.  Y.  Supp.  330,  affirmed  143  N.  Y.  641,  37  N.  E. 
823,  on  opinion  below.  But  see  Hoyt  v.  Commissioners  of  Taxes,  23 
N.  Y.  232,  and  cases  supra,  page  170. 

(171) 


§    47  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.   4 

laws  permit  it,  so  long  as,  and  to  the  same  extent  as,  the 
said  laws  shall  remain  in  force,  Frenchmen  shall  enjoy  the 
right  of  possessing  personal  and  real  property  by  the  same 
title  and  in  the  same  manner  as  the  citizens  of  the  United 
States.  They  shall  be  free  to  dispose  of  it  as  they  may 
please,  *  *  *  by  donation,  testament  or  otherwise,  just 
as  those  citizens  themselves;  and  in  no  case  shall  they  be 
subject  to  taxes  on  transfer,  inheritance  or  any  others,  dif- 
ferent from  those  paid  by  the  latter,  or  to  taxes  which  shall 
not  be  equally  imposed."  101 

(c)  The  Rule  as  Applied  to  Tangible  and  Intangible  Property. 

While  the  fiction  has  not  been  followed  in  some  states, 
upon  grounds  of  public  policy,  and  has  been  overthrown  in 
others  by  statute,  it  becomes  important  to  notice  the  dis- 
tinction which  has  been  made  in  this  country — but  which 
does  not  seem  to  exist  in  England — between  tangible  and 
intangible  personal  property,  because  out  of  this  distinction 
has  arisen  the  main  conflict  and  difference  in  some  of  the 
states,  under  these  laws,  as  to  the  taxability  of  what  is 
often  termed  purely  intangible  personal  property,  such  as 
bonds,  certificates  of  stock,  notes,  mortgages,  debts,  and 
the  like.  In  Connecticut,  we  have  seen,  the  statute  ex- 
pressly includes  both  tangible  and  intangible  property,  but 
no  decision  seems  to  have  been  made  construing  this  pro- 
vision.102 

The  same  provision  is  also  contained  in  the  statutes  of 
Massachusetts,  Ohio,  and  Maine.103 

101  In  re  Bondon  (March  1,  1892)  6  N.  Y.  Law  J,  1322. 

102  Pub.  Laws  Conn.  1889,  c.  180,  Appendix,  VII.  The  state  has 
power  to  impose  a  tax  upon  a  debt  due  from  a  resident  of  another 
state  to  a  citizen  of  the  taxing  state,  although  the  debt  is  secured  by 
a  mortgage  upon  lands  in  the  state  where  the  debtor  resides.  Kirk- 
land  v.  Hotchkiss,  100  U.  S.  498. 

103  See  statutes,  Appendix,  IV.-VI. 
(172) 


Ch.  4]        RESIDENT    AND    NONRESIDENT    DECEDENTS.  §    47 

It  is  not  always  easy  to  determine  what  comes  within  the 
definition  of  the  terms  "tangible"  and  "intangible."  104 

In  England,  under  the  succession  act,  the  word  "proper- 
ty" includes  the  shares  of  stocks  of  foreign  governments  and 

104  We  give  a  few  cases  defining  what  has  been  considered  tangible 
and  intangible  property  under  legacy  and  general  tax  laws  where 
nonresident  decedents  are  concerned: 

(a)  Intangible:  Debts,  i.  e.  mortgages,  railroad  bonds,  certificates 
of  stock,  Foreign  Bond  Tax  Cases,  15  Wall.  300,  324;  Kirkland  v. 
Hotchkiss,  100  U.  S.  498;  San  Francisco  v.  Mackey,  22  Fed.  602; 
Com.  v.  Chesapeake  &  O.  R.  Co.,  27  Grat.  354;  Goldgart  v.  People, 
106  111.  25;  Latrobe  v.  City  of  Baltimore,  19  Md.  13;  Com.  v.  Stand- 
ard Oil  Co.,  101  Pa.  St.  119;  bonds  and  certificates  of  stock  in  for- 
eign corporations,  In  re  Enston's  Will,  113  N.  Y.  181,  21  N.  E.  87; 
In  re  James  (1894)  144  N.  Y.  6,  38  N.  E.  961,  affirming  77  Hun,  213, 
28  N.  Y.  Supp.  351,  distinguishing  In  re  Romaine  (1891)  127  N.  Y.  8S, 
27  N.  E.  759;  land  directed  to  be  converted  into  money  and  dis- 
tributed, In  re  Coleman's  Estate,  159  Pa.  St.  231,  28  Atl.  137;  In  re 
Del  Busto's  Estate,  23  Wkly.  Notes  Cas.  Ill;  In  re  Bacon's  Estate, 
3  Del.  Co.  Rep.  603;  Commonwealth's  Appeal,  11  Wkly.  Notes  Cas. 
492;  Kintzing  v.  Hutchinson,  34  Leg.  Int.  368;  government  and  state 
bonds  and  county  stock,  Orcutt's  Appeal,  97  Pa.  St.  185;  In  re  Del 
Busto's  Estate,  23  Wkly.  Notes  Cas.  Ill;  Commonwealth's  Appeal, 
11  Wkly.  Notes  Cas.  494;  In  re  Alexander's  Estate,  3  Pa.  Law  J. 
R.  (Clark)  87,  *448;  chose  in  action— right  to  a  sum  of  money 
or  legacy— given  by  will  of  a  resident  to  a  nonresident  decedent  not 
property  within  the  state,  In  re  Phipps  (1894)  77  Hun,  325,  28  N. 
Y.  Supp.  330,  affirmed  143  N.  Y.  641,  37  N.  E.  823,  mem. 

(b)  Tangible  property:  Debt  owing  resident  of  taxing  state,  Kirk- 
land v.  Hotchkiss,  100  U.  S.  498;  earnings  set  apart  to  pay  interest, 
Michigan  Cent.  R.  Co.  v.  Collector,  100  U.  S.  595;  U.  S.  v.  Erie  Ry. 
Co.,  106  U.  S.  327,  1  Sup.  Ct.  223;  Com.  v.  Chesapeake  &  O.  R.  Co., 
27  Grat.  344;  bonds,  certificates  of  stock,  and  money,  American  Coal 
Co.  v.  Commissioners  of  Allegany  Co.,  59  Md.  185;  City  of  Baltimore 
v.  Baltimore  Passenger  R.  Co.,  57  Md.  31.  See  Catlin  v.  Hull,  21  Vt. 
158,  and  case  cited  supra,  p.  169;  State  v.  Dalrymple,  70  Md.  294,  17 
Atl.  82;  In  re  Romaine,  supra;  Laws  N.  Y.  1S92  c.  399,  §  9;  In  re 
Duckworth  (July  3,  1891)  5  N.  Y.  Law  J.  864;  In  re  Morejon,  Id.; 
government,    state,  and   municipal   bonds,  etc.,  Foreign    Bond    Tax 

(173) 


§   47  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.  4 

corporations  within  the  kingdom  which  are  transferable 
abroad.105 

Many  of  the  statutes,  by  express  provision,  include  the 
transfer  of  stocks  by  foreign  executors.  Such  a  statute  is 
enforced  in  Pennsylvania,106  but  a  similar  provision  was 
held  unenforceable  in  New  York,  under  the  act  of  1885.107 

As  we  have  seen,  upon  grounds  of  public  policy,  that 
the  taxing  state  ought  not  to  discriminate  against  its  own 
citizens,  in  favor  of  nonresidents,  and  in  some  states,  by  ex- 
press enactment,  both  tangible  and  intangible  property 
within  the  state  have  been  held  liable  to  this  tax;  and  so, 
under  general  tax  laws,  taxes  have  been  imposed  where 
such  intangible  property,  such  as  bonds,  stocks,  mortgages, 
and  other  choses  in  action,  was  actually  within  the  taxing 
state  at  the  time  of  death,  in  the  hands  of  an  administra- 

Cases,  15  Wall.  324;  In  re  Cigala,  7  Ch.  Div.  356;  In  re  Ewing,  1 
Cromp.  &  J.  151;  bank  and  other  notes,  Foreign  Bond  Tax  Cases, 
15  Wall.  324;  Osgood  v.  Maguire,  61  N.  Y.  529;  interest  of  a  non- 
resident deceased  partner  in  a  copartnership  actually  within  the 
state,  consisting  of  land,  stocks,  bonds,  and  accounts,  In  re  Small's 
Estate,  151  Pa.  St.  1,  25  Atl.  23,  28;  In  re  Coleman's  Estate,  159 
Pa.  St.  231,  28  Atl.  137;  mortgages  upon  lands,  In  re  Romaine,  supra: 
In  re  Coming's  Estate  (Surr.)  23  N.  Y.  Supp.  285. 

105  per  Jessel,  M.  R.,  in  Re  Cigala  (1878)  7  Ch.  Div.  351.  See  At- 
torney General  v.  Bouwens'  Settlement  Trusts,  4  Mees.  &  W.  171. 
But  in  Re  Enston's  Will,  113  N.  Y.  181,  21  N.  E.  87,  where  the 
maxim  was  applied,  the  court  said:  "The  certificates  are  in  no  gen- 
eral sense  property.  They  simply  represent  interest  in  the  corpora- 
tions," etc.  In  re  James,  144  N.  Y.  6,  38  N.  E.  961;  Orcutt's  Appeal, 
97  Pa.  St.  179.    See  45  Alb.  Law  J.  April  16,  1892,  p.  331. 

ice  Scott,  Intest.  Laws  (Pa.,  1871)  p.  547.  Contra,  Kintzing  v. 
Hutchinson,  34  Leg.  Int.  365,  Fed.  Cas.  No.  7,834. 

lot  in  re  Enston,  113  N.  Y.  180,  21  N.  E.  87.  Under  Act  1887, 
c.  713,  §  11,  and  Laws  1892.  c.  399,  §  9,  such  provision  would  now 
seem  to  be  unenforceable.  In  re  Romaine  (1891)  127  N.  Y.  86,  27  N. 
E.  759.  See  the  question  discussed  in  45  Alb.  Law  J.  April  16,  1892, 
p.  331.  See,  also,  In  re  Stacey  (May  20,  1892)  7  N.  Y.  Law  J.  478. 
(174) 


Ch.   4]        RESIDENT    AND    NONRESIDENT    DECEDENTS.  §    47 

tor  or  executor  with  ancillary  letters,  or  where  such  prop- 
erty was  in  the  hands  of  a  mere  agent  for  collection.108 

The  contrary  view  of  this  subject,  which  is  entitled  to 
much  consideration,  is  taken  in  Pennsylvania;  but  even  in 
that  state  the  maxim  is  apparently  restricted  to  intangible 

108  state  v.  St.  Louis  Co.,  47  Mo.  594;  Catlin  v.  Hull,  21  Vt.  152, 
cited  and  approved  in  Hoyt  v.  Commissioners,  23  N.  Y.  224;  People 
v.  Gardner,  51  Barb.  352;  Osgood  v.  Maguire,  61  N.  Y.  529;  St.  Louis 
v.  Wiggins  Ferry  Co.,  40  Mo.  5S0;  State  v.  Dalryinple,  70  Md.  294, 
17  Atl.  82;  In  re  Clark  (Surr.)  9  N.  Y.  Supp.  444;  In  re  Bomaine, 
127  N.  Y.  80-SS,  27  N.  E.  759;  In  re  Vinot  (Surr.)  7  N.  Y.  Supp.  517; 
In  re  Cigala,  7  Ch.  Div.  351.  But  see,  regarding  stocks  and 
bonds  of  foreign  corporations  and  debts  due  nonresidents,  In  re 
Enston,  113  N.  Y.  181,  21  N.  E.  87;  In  re  James  (1894)  144  N. 
Y.  6,  38  N.  E.  961;  Id.,  77  Hun,  211,  28  N.  Y.  Supp.  351;  In  re 
Phipps  (1894)  77  Hun,  325,  28  N.  Y.  Supp.  330,  affirmed  143  N.  Y. 
641,  37  N.  E.  823  (no  opinion);  San  Francisco  v.  Mackey,  22  Fed. 
602;  Foreign-Held  Bond  Tax  Cases,  15  Wall.  300;  Kintzing  v.  Hutch- 
inson, 34  Leg.  Int.  365,  Fed.  Cas.  No.  7,834;  Allen  v.  Philadelphia 
Sav.  Fund  (1879)  7  Reporter,  775,  25  Int.  Eev.  Rec.  171,  Fed.  Cas. 
No.  234;  Orcutt's  Appeal,  97  Pa.  St.  179;  In  re  Del  Busto's  Estate, 
23  Wkly.  Notes  Cas.  111.  In  the  Foreign-Held  Bond  Tax  Cases  (1872) 
15  Wall.  300,  it  was  held  by  a  bare  majority  of  the  supreme  court 
(Clifford,  Miller,  Davis,  and  Hunt,  JJ.,  dissenting)  that  the  state  of 
Pennsylvania  had  no  power  to  enforce  a  property  tax  upon  mere  in- 
terest—a debt— due  from  a  railroad  company  to  bondholders  residing 
abroad,  where  the  bonds  were,  notwithstanding  the  bonds  were  se- 
cured by  mortgage  upon  property  within  the  state,  upon  the  ground 
that  the  interest  was  a  mere  debt  and  intangible;  but  it  is  clear 
from  the  prevailing  opinion  that,  had  the  bonds  been  within  the  state 
"separated  from  the  possession  of  the  owners"  (page  342),  the  tax 
would  have  been  upheld.  See  this  case  distinguished  in  New  York, 
L.  E.  &  W.  R.  Co.  v.  Pennsylvania  (1893)  153  U.  S.  646,  647,  14  Sup. 
Ct.  952.  In  People  v.  Coleman,  119  N.  Y.  137,  23  N.  E.  4S8,  it  was 
held  that  personal  property  belonging  to  a  nonresident,  in  the  actual 
possession  of  a  trustee  residing  in  another  state,  was  not  liable  to 
property  tax  in  New  York,  although  two  trustees  resided  there.  Such 
property  would  have  been  taxable  if  within  the  state.  People  v. 
Barker,  135  N.  Y.  656,  32  N.  E.  252. 

(175) 


§   47  RESIDENT    AND    NONRESIDENT   DECEDENTS.  [Ch.   4 

property,  and  personal  property  of  a  tangible  nature  is 
subject  to  taxation  under  the  law.  The  position  seems  to 
be  somewhat  inconsistent,109  as,  by  express  provision  of  the 
statute,  it  is  made  applicable  to  transfers  of  shares  of  stock 
within  the  state  by  foreign  executors.110 

In  Orcutt's  Appeal,  where  decedent  (a  foreigner)  died  tes- 
tate, it  was  said  that  the  act  was  intended  to  embrace  only 
personal  property  of  a  tangible  nature  actually  situated  or 
used  for  business  purposes  within  the  commonwealth,  and 
not  to  mere  certificates  of  indebtedness,  such  as  government 
bonds,  whose  situs  necessarily  followed  the  domicile  of  the 
owner.  "By  the  very  words  of  the  act,"  said  the  court,  "the 
tax  is  not  only  limited  to  such  estates  as  have  a  situs  within 
the  commonwealth,  and  also  pass  to  collateral  heirs  or  leg- 
atees, but  it  is  further  restricted  in  defining  the  mode  in 
which  they  shall  pass,  viz.  'estates  being  within  this  com- 
monwealth and  passing  from  any  person  either  by  will  or 
under  the  intestate  laws  thereof.'  It  is  clear,  therefore, 
that  estates  not  passing  by  a  will  that  is  operative  within 
the  state,  or  under  the  intestate  laws  thereof,  *  *  *  are 
not  within  the  purview  of  the  act.  Devolution,  either  un- 
der the  intestate  laws  of  the  commonwealth,  or  under  a 
properly  executed  will,  is  clearly  made  a  condition  of  lia- 
bility to  the  tax." 

The  court  conceded,  however,  that  the  will  in  that  case 
was  "sufficient  to  pass  personal  property"  in  the  state.  It 
was  further  said  that  it  did  not  appear  whether  any  part 

109  See  Orcutt's  Appeal,  97  Pa.  St.  1S5,  1S6,  distinguished  and  re- 
stricted in  Re  Romaine,  127  N.  Y.  80-86,  27  N.  E.  759;  In  re  Small's 
Estate,  151  Pa.  St.  1,  25  Atl.  23;  32  Am.  Law  Reg.  (N.  S.)  3G5,  and 
note. 

no  Scott,  Intest.    Laws  (Pa.,  1871)  p.    547.     Contra,    Kintzing  v. 
Hutchinson,  34  Leg.  Int  365,  Fed.  Cas.  No.  7,834.    See  In  re  Enston's 
Will,  113  N.  Y.  180,  21  N.  E.  87;  Alb.  Law  J.  April  16,  1892,  p.  331, 
and  cases  supra. 
(176) 


Ch.   4]        RESIDENT    AND    NONRESIDENT   DECEDENTS.  §    47 

of  the  fund  would  go  to  the  collaterals  until  after  final  ad- 
ministration and  distribution  of  the  estate. 

This  rule  has  been  followed  in  that  state  as  to  bonds  and 
other  securities,  with  the  extreme  result  of  exempting,  not 
only  government  bonds,  but  bonds  and  stocks  issued  under 
the  laws  of  the  state,  and  actually  within  the  state.111 

Hence,  bonds  belonging  to  a  nonresident  decedent,  but 
within  the  state,  in  an  agent's  hands,  at  the  time  of  death, 
are  not  liable.112 

So  mortgages  upon  real  estate  in  the  state,  held  as  col- 
lateral to  bonds  owned  by  a  decedent  domiciled  in  another 
state,  are  not  liable.113 

An  interesting  question  recently  arose  in  Coleman's  Es- 
tate, where  decedent,  a  nonresident,  owned  lands  in  Penn- 
sylvania, and  directed  his  executors  to  "convert  the  same 
into  money,  and  apply  the  proceeds"  to  the  payment  of  leg- 
acies to  collateral  heirs.  It  was  held  that  the  proceeds  of 
such  lands  were  not  liable  to  taxation  in  that  state.114 

The  court  (Hawkins,  P.  J.)  said: 

"The  solution  of  the  question  involved  in  this  case  turns 
mainly  upon  the  application  of  the  maxim  that  the  situs 

in  In  re  Del  Busto's  Estate,  23  Wkly.  Notes  Cas.  Ill;  Common- 
wealth's Appeal  (Pa.  Sup.)  11  Wkly.  Notes  Cas.  494;  Bacon's  Estate, 
3  Del.  Co.  Rep.  603;  Kintzing  v.  Hutchinson,  34  Leg.  Int.  3G5,  Fed. 
Cas.  No.  7,834.  See  Com.  v.  Smith,  5  Pa.  St.  142;  In  re  Alexander's 
Estate,  4  Pa.  Law  J.  R.  (Clark)  87,  *448;  Citizens'  Nat.  Bank  v.  Sharp, 
53  Md.  531;  In  re  Short's  Estate,  16  Pa.  St.  63;  In  re  Hood's  Estate, 
21  Pa.  St.  106;  In  re  Enston,  113  N.  Y.  183,  21  N.  E.  87;  In  re  Tu- 
lane,  51  Hun,  213,  4  N.  Y.  Supp.  36.  In  Foreign-Held  Bond  Tax 
Cases,  15  Wall.  300,  the  court  held  that  state  and  municipal  bonds 
were  tangible  property,  and  classed  railway  and  other  securities  as 
intangible. 

112  Commonwealth's  Appeal,  11  Wkly.  Notes  Cas.  494. 

us  Bacon's  Estate,  supra. 

H4  In  re  Coleman's  Estate  (Commonwealth's  Appeal;  1893)  159  Pa. 
St.  231,  28  Atl.  137,  23  Pittsb.  Leg.  J.  (N.  S.)  211. 

LAW  INHER. — 12  (177) 


§   47  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.  4 

of  personal  property  follows  the  domicile  of  the  owner.  It 
was  said  in  In  re  Small's  Estate115  that,  as  a  general  rule, 
intangible  personal  property  of  a  nonresident,  such  as 
bonds,  mortgages,  and  other  choses  in  action,  is  governed, 
as  to  its  situs,  by  the  fiction  of  law  above  noticed,  and  hence 
such  property  is  not  subject  to  collateral  inheritance  taxa- 
tion under  the  act  of  1S87,  because  not  situate  in  this  state. 

"Some  species  of  personal  property,  it  is  true,  when  used 
in  carrying  on  business,  or  for  other  particular  purposes, 
may  have  an  actual,  as  distinct  from  a  legal,  situs,  but  the 
local  character  of  the  use  takes  it  out  of  the  operation  of  the 
rule.  And  of  this  Small's  Estate  is,  of  itself,  a  striking  il- 
lustration. Not  only  was  the  'thing'  given  employed  in  a 
business  which  was,  by  its  nature,  localized,  but  the  mani- 
fest intent  of  the  testator  was  that  it  should  remain  in  this 
state.  The  bequest  was  specifically  of  testator's  interest, 
including  all  the  property,  real  and  personal,  notes,  stocks, 
bonds,  and  accounts,  in  a  limited  partnership  organized  un- 
der the  laws,  and  having  its  principal  place  of  business  in 
this  state. 

"The  value  of  the  property  depended  largely  upon  its  con- 
tinuance here.  There  was  no  reason  for  its  conversion  and 
transmission  to  the  testator's  domicile,  and  it  was  given  to 
the  surviving  partners,  as  such,  in  specie.  The  facts  plainly 
made  an  exception  to  the  general  rule.  The  actual  situs  was 
here,  and  liability  to  the  tax  followed.  It  is  urged  on  be- 
half of  the  commonwealth  that  this  case  rules  the  present, 
but  the  facts  differ  in  material  respects.  The  gift  here  was 
of  an  interest  in  a  fund  whose  distribution  belonged  to  the 
domicile  of  the  donor.     *     *     * 

"The  thing  given  was  not  lands,  but  an  interest  in  its  pro- 
ceeds. If  bonds,  notes,  stocks,  and  mortgages  be  intangible 
personal  property,  surely  this  is."  116 

In  some  of  the  earlier  cases  in  the  state,  where  the  doc- 

11  b  151  Pa.  St  1,  25  Atl.  23.         ne  In  re  Coleman's  Estate,  supra. 
(178) 


Ch.   4]        RESIDENT    AND    NONRESIDENT    DECEDENTS.  §    47 

trine  of  the  domicile  does  not  seem  to  have  been  deemed 
material,  such  property  was  held  liable,  though  the  decedent, 
who  at  the  time  of  his  death  was  domiciled  abroad,  but  pre- 
vious to  that  time  had  been  domiciled  in  Pennsylvania,  left 
a  will  describing  himself  of  Philadelphia,  and  his  will  pro- 
bated there.117 

So,  in  another  case,118  it  was  held  that  county  and  state 
stock  belonging  to  a  decedent  domiciled  abroad  at  the  time 
of  his  death  were  taxable,  upon  the  ground  that  there  was 
a  new  administration  in  the  state,  and  the  funds  were  there. 
This  was  the  early  doctrine  of  the  English  courts.119 

Recently  it  has  been  held  in  Pennsylvania  that  the  inter- 
est of  a  nonresident  deceased  member  of  a  limited  partner- 
ship association,  consisting  of  shares  of  stock,  etc.,  in  the 
company  doing  business  in  the  state,  is  liable  to  taxation, 
where  the  real  and  personal  property  of  the  association  is 
situated  within  the  state.120 

In  holding  such  property  taxable,  the  supreme  court  adopt- 
ed the  rule  laid  down  in  Hoyt  v.  Com.,121  saying,  with  refer- 
ence to  the  rule  of  the  domicile:  "The  facts  of  this  case, 
however,  are  different,  and  bring  it  within  the  exceptions  to 
the  fictitious  rule.  In  the  formation,  location,  etc.,  of  their 
partnership  association,  the  testator  and  his  brothers  evi- 
dently established  the  situs  of  the  personal  property,  which 
constituted  its  capital.     They  organized  the  association  un- 

117  Com.  v.  Smith,  5  Pa.  St.  142,  explained  in  Kintzing  v.  Hutch- 
inson, 34  Leg.  Int.  365,  Fed.  Cas.  No.  7,834;  In  re  Short's  Estate,  16 
Pa.  St.  66;   State  v.  Dalrymple,  70  Md.  294,  17  Atl.  82. 

us  Alexander's  Estate,  4  Pa.  Law  J.  87;  citing  In  re  Ewing,  1 
Cromp.  &  J.  151. 

ii»  Attorney  General  v.  Cockerell,  1  Price,  165;  Attorney  General 
v.  Beetson,  7  Price,  560.  See,  also,  In  re  Romaine,  127  N.  Y.  86,  27 
N.  E.  759;  Alvany  v.  Powell,  2  Jones,  Eq.  57. 

120  in  re  Small's  Estate  (1892)  151  Pa.  St.  1,  25  Atl.  23.  See  note 
to  this  case  32  Am.  Law  Reg.  (N.  S.)  364;  11  Pa.  Co.  Ct  R.  1. 

12123  N.  Y.  224,  22S. 

(179) 


§    47  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.   4 

der  the  laws  of  this  state,  located  its  principal  office  and  con- 
ducted its  business  therein,  and  thus  enjoyed  the  benefit  of 
the  law  and  protection  of  the  state  and  local  government. 
In  such  circumstances,  *  *  *  the  truth,  and  not  the  fic- 
tion, plainly  affords  the  rule  of  action.  Neither  convenience 
nor  justice  requires  us  to  resort  to  the  fictitious  rule." 

Where  decedent,  a  nonresident  of  Tennessee,  shortly  prior 
to  his  death,  inherited  a  certain  fund  from  his  sister,  a  resi- 
dent of  that  state,  which  was  paid  over  to  decedent's  ad- 
ministrator in  the  state,  and  such  administrator  intended  to 
make  a  final  distribution  in  Pennsvlvania,  held  that  the  fund 
had  a  situs  in  Pennsylvania,  and  not  at  the  domicile  of  de- 
cedent, and  so  was  subject  to  the  tax.122 

In  New  York,  estates  of  nonresident  decedents  within  the 
state  were  originally  held  not  liable,  upon  a  construction 
placed  upon  the  statute,  it  being  held  that  there  was  no  in- 
tention on  the  part  of  the  legislature  to  tax  such  estates.123 

The  principles  adopted  by  the  Pennsylvania  courts  were 
substantially  applied,  and  it  was  held  that  stocks  and  bonds 
in  the  state,  in  the  hands  of  an  agent,  were  in  no  general 
sense  property,  and  had  no  situs  in  the  state,  and  that  the 
policy  of  the  state  exempted  them  from  general  taxation.124 

122  Weaver's  Estate  (1895)  12  Lane.  Law  Rev.  57.  But  see  In  re 
Phipps  (1894)  77  Hun,  325,  28  N.  Y.  Supp.  330;  Id.,  143  N.  Y.  641, 
37  N.  E.  823.  See  In  re  Thomas  (1893)  3  Misc.  Rep.  388,  24  N.  Y. 
Supp.  713. 

123  in  re  Enston's  Will,  113  N.  Y.  179,  21  N.  E.  87;  In  re  Tulane, 
51  Hun,  213,  4  N.  Y.  Supp.  36.  The  statute  (Laws  1885,  c.  483,  §  1) 
imposed  the  tax  "upon  all  property  which  shall  pass  by  will,  or  by 
the  intestate  laws  of  the  state  from  any  person  who  may  die  seised 
or  possessed  of  the  same  while  being  a  resident  of  the  state,  or 
which  property  shall  be  within  this  state."  See  the  subject  consid- 
ered in  Alb.  Law  J.  April  16,  1892,  p.  331,  by  E.  H.  Blanc,  Esq. 

124  id.,  citing  Williams  v.  Board  of  Supervisors  of  Wayne  Co.,  78 
N.  Y.  561.  But  see  Hoyt  v.  Commissioners  of  Taxes,  23  N.  Y.  224, 
citing  Catlin  v.  Hull,  21  Vt.  152,  and  cases  supra,  page  169. 

(180) 


Ch.   4]        RESIDENT    AND    NONRESIDENT    DECEDENTS.  §   47 

All  the  judges,  however,  did  not  concur  in  this  result, 
which  was  reached  by  a  bare  majority; 125  and  the  dissent- 
ing opinion  of  Danforth,  J.,  ably  presents  the  contrary  view 
of  the  question.  The  amended  statute  of  1887,126  taxing  the 
property  of  all  nonresident  decedents,  showed  the  true  pol- 
icy of  the  state.  Under  this  statute  the  lower  courts  held 
that  tangible  and  intangible  personal  property  of  a  nonresi- 
dent within  the  state  were  liable  to  the  tax.  But  until  1891 
the  question,  under  the  amendatory  act,  never  received  any 
consideration  by  the  court  of  appeals,  although  incidentally, 
in  considering  the  law  of  1887,  all  the  judges  agreed,  in  the 
Enston  Case,127  that  it  was  meant  to  cover  the  estates  of 
nonresident  decedents,  but  to  what  extent  was  left  undecid- 
ed.128 

This  act 129  provided  that  all  property  passing  by  will  or 
by  intestate  laws  of  the  state,  from  any  person  who  may 
die  seised  or  possessed  of  the  same  while  a  resident  of  the 
state,  or  if  such  decedent  was  not  a  resident  of  the  state 
at  the  time  of  death,  which  property,  or  any  part  thereof, 
shall  be  within  this  state,  is  subject  to  taxation.  Under  the 
act  of  1892,130  this  provision  is  substantially  continued. 
The  act  confers  further  jurisdiction  by  providing  13X  that  the 
words  "estate"  and  "property"  shall  include  all  property  or 
interest  therein  whether  situated  within  or  without  this 

125  Danforth,  J.,  wrote  a  dissenting  opinion.  Finch,  J.,  concurred 
therein,  and  Ruger,  C.  J.,  did  not  vote. 

126  Laws  1887,  Appendix,  I. 

127  Supra. 

128  Appendix,  I.,  Laws  1887,  §  1,  amending  Laws  1885,  c.  483.  And 
see,  also,  In  re  Clark's  Estate  (Surr.)  9  N.  Y.  Supp.  444;  In  re  Vinot's 
Estate  (Surr.)  7  N.  Y.  Supp.  517;  In  re  Romaine,  127  N.  Y.  86,  27 
N.  E.  759.  See  note  to  this  case,  12  Lawy.  Rep.  Ann.  401,  Alb.  Law 
J.  April  1G,  1S92,  p.  331. 

129  See  Appendix,  I. 

130  Appendix,  I.    Laws  1892,  c.  399,  §§  1-3. 

131  Laws  1892,  §  22. 

(1SI) 


§   47  RESIDENT    AND    NONRESIDENT   DECEDENTS.  [Ch.   4 

state,  over  which  this  state  has  any  jurisdiction  for  the  pur- 
poses of  taxation." 

In  1891  the  construction  of  the  act  of  1887  came  before 
the  court  of  appeals,  Second  division,132  with  respect  to  the 
liability  of  a  nonresident  intestate ;  and  it  was  held  that  the 
property  of  such  decedent  within  the  state,  consisting  of 
stocks  and  bonds  of  corporations,  kept  in  a  safe-deposit 
vault,  money  in  savings  banks,  and  mortgages  upon  real  es- 
tate situated  within  the  state,  were  liable  to  taxation.133 

To  the  appellant's  contention  that  the  property  was  not 
within  the  state,  according  to  the  true  meaning  of  the  stat- 
ute, but  was  presumed  to  be  at  the  domicile,  the  court,  per 
Vann,  J.,  said :  "The  fiction  of  law  that  personal  estate  has 
no  situs  away  from  the  person  or  residence  of  its  owner  is 
done  away  with,  to  a  limited  extent  and  for  a  specified  pur- 
pose, and  the  truth  is  substituted  in  its  stead  as  the  rule  of 
action.  That  the  legislature  had  power  to  do  this  can  hard- 
ly be  questioned.134  As  was  said  by  Judge  Story,  when  writ- 
ing upon  this  subject,  'a  nation  within  whose  territory  any 
personal  property  is  actually  situated  has  as  entire  domin- 
ion over  it,  while  therein,  in  point  of  sovereignty  and  juris- 

132  in  re  Romaine  (1891)  127  N.  Y.  86,  27  N.  E.  759  (Haight,  J., 
dissenting),  affirming  58  Hun,  109,  11  N.  Y.  Supp.  313;  48  Phila.  Leg. 
Int.  265,  267.  See  note  to  44  Alb.  Law  J.  Dec.  12,  1891,  p.  478,  en- 
titled "The  Act  to  Tax  Inheritance."  See  article  in  45  Alb.  Law  J. 
April  16,  1892,  p.  331,  entitled  "Collateral  Inheritance  Tax  in  Con- 
nection with  Transfer  of  Stocks  and  Loans  by  Foreign  Executors 
and  Administrators."  The  Romaine  Case  was  followed  in  Re 
Duckworth  (July  3,  1891)  5  N.  Y.  Law  J.  864;  Re  Morejon, 
Id.;  ReBondon  (March  1,  1892)  6  N.  Y.  Law  J.  1322.  See,  also,  In 
re  Phipps  (1894)  77  Hun,  325,  28  N.  Y.  Supp.  330,  affirmed  143  N.  5. 
641,  37  N.  E.  S23,  on  opinion  below;  In  re  James,  144  N.  Y.  6,  38  N. 
E.  961,  affirming  77  Hun,  213,  28  N.  Y.  Supp.  351,  where  the  case  of 
Romaine  is  distinguished.  See,  also,  note  on  this  case  12  Lawy.  Rep. 
Ann.  401,  27  N.  E.  759. 

133  Followed  in  Re  Morejon,  supra;   Re  Bondon  and  cases  supra. 
is*  in  re  McPherson,  104  N.  Y.  306,  10  N.  E.  6S5. 

(182) 


Ch.  4]        RESIDENT    AND    NONRESIDENT    DECEDENTS.  §   47 

diction,  as  it  has  over  immovable  property  situated  there.' 18B 
Where  the  money  of  a  nonresident  is  invested  in  this  state, 
as  it  was  by  Mr.  Roniaine,  in  the  bond  and  mortgage  in  ques- 
tion, and  in  the  deposits  made  by  him  in  the  savings  banks, 
or  where  the  property  of  a  nonresident  is  habitually  kept, 
even  for  safety,  in  this  state,  we  think  that  the  statute  ap- 
plies, both  in  the  letter  and  spirit.  Such  property  is  within 
this  state,  in  every  reasonable  sense,  receives  the  protection 
of  its  laws,  and  has  every  advantage  from  government,  for 
the  support  of  which  taxes  are  laid,  that  it  would  have  if  it 
belonged  to  a  resident.  We  think  that  a  fair  construction 
of  the  act  permits  no  distinction  as  to  such  property,  based 
simply  upon  the  residence  of  the  deceased  owner.  We  have 
nothing  to  do  with  the  policy  of  the  statute,  as  our  duty  is 
discharged  when  we  declare  its  meaning,  and  apply  it  to 
the  case  in  hand.  That  duty  we  discharge  in  this  instance 
by  adjudging  that  succession  to  the  personal  property  in 
question  lately  belonging  to  Worthington  Romaine,  a  non- 
resident intestate,  but  invested  or  habitually  kept  by  him  in 
this  state,  is  taxable  under  the  collateral  inheritance  act,  in 
so  far  as  it  passed  to  persons  not  excepted  from  its  provi- 
sions." 136 

In  this  case  it  did  not  appear  whether  or  not  the  bonds 
and  stocks  were  of  foreign  corporations. 

But,  under  a  recent  ruling  of  the  court  of  appeals  in  Re 
James,137  stocks  and  bonds,  also,  it  would  seem,  in  foreign 
corporations,  belonging  to  the  estates  of  nonresident  dece- 
dents, and  actually  within  the  state,  are  held  not  liable  to 
taxation  under  the  act  of  1887;  the  court  holding  that  such 
certificates  of  stock  are  mere  evidence  of  title,  or  of  an  in- 

135  Citing  Story,  Confl.  Laws,  §  550;  People  v.  Tax  Com'rs,  23  N.  Y. 
224,  and  other  cases. 

ise  Followed  in  Re  Phipps  (18&4)  77  Hun,  325,  28  N.  Y.  Supp. 330,  af- 
firmed 143  N.  Y.  641,  37  N.  E.  823,  mem. 

137  144  N.  Y.  6,  38  N.  E.  901. 

(183) 


§    47  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.  4 

terest  in  the  assets  of  the  corporation,  that  they  were  at  the 
domicile  of  the  owner  or  corporation,  and  that  they  were 
not  property,  within  the  meaning  of  the  statute2  or  intended 
to  be  taxed  thereunder.138 

In  this  matter,  it  appeared  that  James  was  a  nonresident 
Englishman,  and  had  the  securities  referred  to  above  on  de- 
posit within  the  state,  at  and  prior  to  his  death.  While  the 
court  conceded  that  it  was  the  intention  of  the  act  of  1887 
to  tax  the  property  of  nonresidents  within  the  state,  it  dis- 
tinguished In  re  Romaine;  holding  there  was  no  intention 
to  tax  certificates  of  stock  in  foreign  corporations,  forming 
part  of  a  nonresident  decedent's  estate,  and  that,  inasmuch 
as  it  appeared  that  none  of  the  legacies  under  the  will  were 
to  be  paid  out  of  the  assets  within  the  state,  no  tax  could 
be  imposed.139 

Gray,  J.,  said: 

'In  view  of  the  importance  of  the  ruling  of  the  courts  be- 
low upon  the  question  of  whether  stocks  of  foreign  corpora- 
tions should  be  included  in  the  valuation  of  testator's  es- 
tate, it  may  be  proper  to  express  our  judgment  further.  We  do 
not  think  it  was  the  intendment  of  the  act  of  1887  to  reach, 
for  purposes  of  taxation,  any  personal  property  that  was 
not  within  the  state,  either  in  fact,  or  because  of  the  domi- 

138  in  re  James,  144  N.  Y.  6,  38  N.  E.  961;  affirming  77  Hun,  211, 
28  N.  Y.  Supp.  351;  reversing  27  N.  Y.  Supp.  288  (Suit.);  and  distin- 
guishing In  re  Romaine,  supra. 

139  in  the  supreme  court  below,  it  was  held  that  a  legacy  under  the 
will  of  a  nonresident  testator  who  leaves  assets  in  New  York  is  not 
taxable  under  the  statute,  unless  paid  out  of  the  assets  within  the 
state.  In  re  James  (1894)  77  Hun,  211,  28  N.  Y.  Supp.  351.  The 
appellate  court  held,  however,  that  it  did  not  lie  with  the  state  to  say 
which  part  of  testator's  estate  should  be  appropriated  to  the  payment 
of  the  legacies,  but  that  the  executor  had  that  right,  and  might  pay 
them  out  of  the  foreign  estate,  and  so  save  the  estate  here  from  the 
payment  of  a  succession  tax  under  the  act.  Id.,  144  N.  Y.  6,  3S  N.  E. 
961. 

(184) 


Ch.   4]       RESIDENT    AND    NONRESIDENT    DECEDENTS.  §    47 

cile  here  of  the  owner.  The  reading  of  the  act  does  not 
authorize  us  to  construe  it  as  an  effort  to  tax  that  over 
which  there  was  no  jurisdiction,  and  it  would  be  highly  im- 
proper to  impute  to  the  legislature  such  an  intention.140  The 
stocks  of  foreign  corporations,  which  formed  part  of  the  es- 
tate, were  not  property,  in  the  legal  sense.  The  share  cer- 
tificates which  the  testator  held  represented  the  interests 
which  he  possessed  in  the  corporations  which  issued  them, 
and  the  legal  situs  of  that  species  of  personal  property  is 
where  the  corporation  exists,  or  where  the  shareholder  has 
his  domicile. 

"We  so  held  in  the  Enston  Case,*  and  the  act  of  1887 
furnishes  no  evidence  of  any  intention  to  change  the  policy 
of  the  law,  which  has  regarded  the  stocks  of  foreign  corpo- 
rations as  being  taxable  only  in  the  place  of  the  owner's 
residence,  or  in  that  of  the  corporations.  In  the  Romaine 
Case,f  nothing  was  decided  to  the  contrary  of  this  view. 
The  property  of  the  nonresident  decedent,  in  that  case,  which 
was  held  to  be  liable  to  taxation,  was  stated  to  be  a  mort- 
gage upon  real  estate  in  the  city  of  New  York,  deposits  in 
savings  banks  in  that  city,  and  stocks  and  bonds  of  differ- 
ent corporations,  but,  whether  domestic  or  foreign,  it  was 
not  made  to  appear." 

The  court  also  held,  on  the  question  of  double  taxation, 
that  its  result  is  one  which  the  courts  should  incline  to 
avoid  whenever  possible  to  do  so. 

There  are  several  objections  to  this  ruling  in  the  James 
Case,  in  construing  the  act  of  1887: 

(1)  The  decision  seems  to  be  based  upon  the  rule  adopted 
under  general  property  tax  statutes,  under  which  certifi- 
cates of  stock  of  foreign  corporations  within  the  state  are 

no  But  Act  1S92,  c.  399,  §  22,  Appendix,  I.,  would  seem  to  confer 
such  power. 

*  113  N.  Y.  181,  21  N.  E.  87. 
1 127  N.  Y.  80,  27  N.  E.  759. 

(185) 


§    47  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.   4 

not  taxable,  under  the  fiction  of  law,  as  against  nonresi- 
dents; but  as  the  inheritance  tax  does  not  tax  any  property, 
but  merely  the  right  or  privilege  of  taking  by  will  or  de- 
scent, this  fiction  would  seem  to  have  no  proper  application 
to  an  inheritance  tax.141  This  distinction  does  not  seem  to 
be  observed  in  the  James  Case. 

(2)  Again,  as  is  shown  elsewhere,  it  perpetrates  an  unjust 
discrimination  against  the  estates  of  resident  decedents,  as 
shown  in  Ke  Komaine,  and  also  because  stocks  and  bonds 
in  foreign  corporations  were  held  taxable,  as  against  the 
estates  of  such  residents,  in  Re  Swift,142  the  court  holding 
that  to  compute  the  succession  tax  on  the  total  personal 
estate  was  not  imposing  a  tax  on  the  stocks  of  foreign  cor- 
porations constituting  a  part  of  the  estate.143 

(3)  Regarding  the  holding  that  the  state  has  no  jurisdic- 
tion to  tax  such  securities,  as  against  nonresident  decedents, 
and  that  it  would  be  highly  improper  to  impute  to  the  legis- 
lature such  an  intention,  the  answer  is  that  there  can  be 
no  doubt,  as  we  have  shown  elsewhere  in  this  chapter,  that 
the  state  has  ample  jurisdiction  to  tax,  under  these  acts,  all 
personal  property  both  tangible  and  intangible,  belonging 
to  nonresident  decedents,  and  actually  within  the  state  and 
protected  by  its  laws.144 

In  order  to  compel  such  property  to  pay  for  the  protection 
it  receives,  the  state  may  give  it  a  situs  apart  from  the  dom- 
icile of  the  owner,  for  the  purpose  of  taxation.  In  such 
cases  the  fact  and  statutory  intent,  and  not  the  fiction,  must 
prevail.145 

i"  Cooley,  Tax'n  (2d  Ed.)  p.  30,  and  see  chapter  2,  §§  8,  17,  and 
cases  cited. 

142  137  N.  Y.  77,  32  N.  E.  1096.  See  the  question  discussed  by  Ran- 
som, S.,  in  this  case  reported  below  in  16  N.  Y.  Supp.  193. 

143  See,  also,  In  re  Merriam  (1S94)  141  N.  Y.  484,  36  N.  E.  505. 

144  see,  also,  Laws  1S92,  c.  399,  §  22. 

145  in  re  Romaine,  supra;  citing  In  re  McPherson,  104  N.  Y.  306, 
10  N.  E.  685;    People  v.  Tax  Commissioners,  23  N.  Y.  224;    In  re 

(186) 


Ch.  4]       KESIDENT    AND    NONRESIDENT    DECEDENTS.  §    47 

(4)  As  to  double  taxation,  it  cannot  always  be  avoided, 
and  it  impinges  no  rule  of  constitutional  law.  It  is,  at  most, 
a  mere  matter  of  policy,  for  the  taxing  power  or  state  to 
determine,  and  not  for  the  courts.146 

No  state  can  be  deprived  of  the  right  to  tax  such  property 
because  another  state — the  domicile  of  decedent — exercises 
the  same  power  over,  it  may  be,  the  same  property.  On 
grounds  of  policy  and  comity,  however,  the  rule  has  been  not 
to  impose  what  would  be,  in  effect,  a  double  tax  on  nonresi- 
dents' estates,  where  it  can  possibly  be  avoided;  but,  as  a 
matter  of  fact,  this  is  done  constantly,  under  these  statutes.147 
In  Coleman's  Estate,148  the  court,  treating  the  matter  in 
this  view,  held  there  was  a  question  of  public  policy  involved 
in  taxing  nonresidents:  "The  rule  that  personal  property 
follows  the  domicile  is  internationally  recognized  and  ob- 
served, as  being  founded  in  convenience,149  and  a  disregard 
of  it  here  may  react  to  the  prejudice  of  our  own  citizens." 

So,  under  the  New  York  statute  of  1891,150  it  has  been 
recently  held,  in  Re  Phipps,151  that  the  right  to  a  legacy 
given  by  the  will  of  a  resident  cannot  be  considered  prop- 
erty located  within  the  state  for  the  purpose  of  taxation, 
against  the  estate  of  a  deceased  nonresident  legatee,  under 

Phipps,  77  Hun,  325,  28  N.  Y.  Supp.  330,  affirmed  143  N.  Y.  641,  37 
N.  E.  823;  Story,  Conn.  Laws,  §  550;  Weaver's  Estate  (1895)  12  Lane. 
Law  Rev.  (Pa.)  57,  and  cases  cited.  See,  also,  State  v.  Dalrymple, 
70  Md.  294,  17  Atl.  82;  Alvany  v.  Powell,  2  Jones,  Eq.  51.  But  see 
Alb.  Law  J.  April  16,  1S92,  p.  332;  citing  Story,  Conn.  Laws,  §  399; 
Parsons  v.  Lyman,  20  N.  Y.  112. 

i*6  See  chapter  2,  §  19;  In  re  Swift  (Ransom,  S.)  N.  Y.  Law  J.  Nov. 
21,  1891. 

i4T  See  In  re  Strong  (Aug.,  1894)  17  N.  J.  Law  J.  234. 

148  159  pa.  St.  231,  28  Atl.  137. 

149  2  Williams,  Ex'rs,  1515. 
i5o  Chapter  215. 

i5i  1894,  77  Hun,  325,  28  N.  Y.  Supp.  330;  s.  c,  affirmed  by  court  of 
appeals,  on  opinion  below,  143  N.  Y.  641,  37  N.  E.  S23,  mem.  See  In  re 
Thomas  (1893)  3  Misc.  Rep.  388,  24  N.  Y.  Supp.  713. 

(187) 


§    47  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.  4 

these  acts.  The  facts  were  these:  Phipps  was  a  resident  of 
Massachusetts.  Under  the  will  of  one  Fogg,  a  resident  of 
New  York,  he  became  entitled  to  an  interest  in  the  residu- 
um of  her  estate.  This  was  appraised,  and  the  tax  thereon 
paid  by  Fogg's  executors,  but  the  legacy  to  Phipps  was 
never  paid,  nor  was  it  in  a  condition  to  be  paid ;  he  having 
died  in  Boston,  while  the  Fogg  estate  was  unsettled.  By 
his  will  he  gave  his  estate  to  his  widow,  and  it  was  sought, 
in  New  York,  by  his  ancillary  executors,  to  ascertain  wheth- 
er the  legacy  to  Phipps  was  taxable ;  in  other  words,  whether 
it  was  property  within  the  state.  In  holding  the  legacy  not 
taxable,  Van  Brunt,  P.  J.,  in  the  supreme  court,  in  an  able 
opinion,  said: 

"The  determination  of  the  question  as  to  whether  any  tax 
can  be  imposed,  under  the  facts  above  stated,  therefore,  in- 
volves the  inquiry  whether  the  decedent  had  any  property 
within  this  state  at  the  time  of  his  death.  If  he  had,  then, 
under  the  principle  announced  in  Re  Romaine,152  it  is  liable. 

"If  he  had  not,  then,  clearly,  there  is  nothing  upon  which 
the  tax  can  operate. 

"In  the  consideration  of  this  question,  it  will  not  be  nec- 
essary to  note  the  difference  between  the  law  as  it  was  orig- 
inally enacted  in  1885  and  as  it  existed  at  the  death  of  the 
testator,  but  simply  to  determine  the  question  as  to  whether 
a  right  to  a  legacy  given  by  the  will  of  a  resident  of  this 
state  can  be  considered  property  located  within  this  state. 
It  seems  to  us  that  the  mere  statement  of  the  proposition 
carries  its  answer  with  it,  when  we  consider  that  the  resi- 
dence of  a  debtor  does  not  fix  the  situs  of  the  debt,  but 
rather  the  domicile  of  the  creditor. 

:1t  is  a  familiar  principle  that  the  situs  of  personal  prop- 
erty is  presumptively  the  domicile  of  its  owner,  and  its  dis- 
position is  controlled  by  the  laws  of  such  domicile. 

"But  for  certain  purposes  of  taxation  a  different  rule  has 

152  127  N.  Y.  88,  27  N.  E.  759. 
(1SS) 


Ch.   4]        EESIDENT    AND    NONRESIDENT    DECEDENTS.  §    47 

obtained,  because  of  statutes  passed  to  prevent  nonresidents 
having  the  protection  of  our  laws  for  their  property,  which 
is  invested  and  kept  within  this  state  without  contributing 
to  the  expense  of  such  protection. 

"And  it  is  in  the  same  line  of  legislation  that  the  statute 
of  1891  has  been  passed;  and  consequently,  where  a  resi- 
dent of  another  state  dies  the  owner  of  personal  property 
which  he  has  habitually  kept  and  invested  in  this  state,  it  is 
liable  to  taxation,  as  has  been  adjudicated  in  the  Case  of 
Romaine,  above  cited.  But  it  has  not  yet  been  determined 
that  if  a  resident  of  another  state  dies,  having  debts  due  him 
by  residents  of  this  state,  those  debts  are  the  subject  of  tax- 
ation, as  being  the  property  of  the  decedent  within  this  state. 
That  such  property  is  not  the  subject  upon  which  the  act  in 
question  was  intended  to  operate,  seems  to  have  been  inti- 
mated in  the  Case  of  Swift,153  where  the  property  the  sub- 
ject of  taxation  is  likened  to  realty,  being  tangible,  and  lo- 
cated within  the  limits  of  the  state,  as  was  the  fact  in  ref- 
erence to  the  estate  of  Romaine.  But  a  mere  chose  in  ac- 
tion— a  right  to  recover  a  sum  of  money — has  never,  as  yet, 
been  given  the  attribute  of  tangibility,  and  this  seems  to  be 
all  that  Phipps  had  at  the  time  of  his  death.  He  had  a  right 
to  claim  the  amount  of  money  which  his  share  of  the  residu- 
ary estate  of  Mrs.  Fogg  would  result  in, — nothing  more;  no 
particular  piece  of  property,  no  particular  sum  of  money,  no 
particular  representatives  of  money  or  property.  And  un- 
til this  residuary  estate  was  ascertained  by  an  accounting 
of  the  executors,  the  legatee  might  not  be  even  able  to  main- 
tain an  action  for  its  recovery.  It  would  appear,  therefore, 
that  a  tax  in  this  proceeding  has  been  levied  upon  a  legacy 
which  not  only  had  never  been  realized,  but  the  right  to  the 
possession  of  which  had  never  accrued.154     And  if,  as  inti- 

153  137  n.  Y.  77,  32  N.  E.  1096. 

is*  See  In  re  Weed's  Estate  (1894)  10  Misc.  Rep.  628,  32  N.  Y.  Supp. 
777. 

(ISO) 


§   47  RESIDENT    AND    NONRESIDENT   DECEDENTS.  [Ch.  4 

mated  in  Re  Romaine,  it  was  not  the  intention  to  attempt 
to  levy  a  tax  upon  property,  except  such  as  the  owner,  at 
the  time  of  his  death,  voluntarily  permitted  to  remain  in  the 
state,  how  can  such  a  tax  be  levied  upon  property  which  the 
decedent  has  never  had  it  in  his  power  to  remove,  if  this 
unrealized  legacy  can  be  called  property  within  this  state? 
In  other  words,  can  this  act  be  construed  to  cover  a  right  at 
some  future  time  to  receive  a  sum  of  nionev,  or  to  recover 
a  debt? 

"We  think,  clearly,  it  cannot,  and  that  all  that  it  was  in- 
tended to  cover  was  tangible  property  kept  within  this  state 
by  the  decedent,  and  that  property  which  is  transiently  here, 
as  upon  the  person  or  in  the  baggage  of  a  man  suddenly  dy- 
ing within  this  state,  was  never  intended  to  be  covered  by 
the  provisions  of  the  act.  If  the  claim  advanced  in  support 
of  the  tax  in  the  case  at  bar  is  to  prevail,  then  in  every  case 
such  as  has  been  cited  must  the  tax  be  collected,  which  could 
never  have  been  the  intention  of  the  legislature." 

Real  estate,  however,  belonging  to  a  foreign  decedent,  is 
within  these  statutes,  because  it  has  a  situs  within  the  state, 
and  the  title  must  be  transmitted  according  to  the  laws  of 
the  state  governing  its  descent  and  conveyance.155 

But  it  has  been  held  in  Pennsylvania  that  real  estate 
within  the  state,  directed  by  will  of  a  nonresident  to  be 
converted  into  money,  and  the  proceeds  directed  to  be  divid- 
ed among  collateral  heirs,  was  not  taxable  in  that  state,  the 
court  following  the  rule  of  the  domicile.156 

It  was  originally  held,  in  New  York,  the  word  "estate,"  in 

155  Orcutt's  Appeal,  97  Pa.  St.  184;  In  re  Del  Busto's  Estate,  23 
Wkly.  Notes  Cas.  111.  Contra,  on  question  of  construction,  In  re 
Enston's  Will,  113  N.  Y.  181,  21  N.  E.  87;  In  re  Tulane,  51  Hun,  213,  4 
N.  Y.  Supp.  36.     See,  also,  Chatfield  v.  Berchtoldt,  7  Ch.  App.  192. 

156  See  section  46,  subd.  b;  In  re  Coleman's  Estate  (1893)  150  Pa. 
St.  231,  28  Atl.  137;  23  Pittsb.  Leg.  J.  (N.  S.)  211.  See,  contra,  In  re 
Swift,  137  N.  Y.  77,  32  N.  E.  1096;  also,  In  re  Small's  Estate,  151 
Pa.  St.  1.  25  Atl.  23. 

(190) 


Ch.   4]        RESIDENT    AND    NONRESIDENT    DECEDENTS.  §    47 

these  acts,  related,  not  to  the  person  of  the  decedent,  but  to 
the  taxable  property  passing  to  the  legatee  or  devisee.157 
But  now,  in  New  York,  under  the  act  of  1892,158  it  is  held 
that  the  words  "estate"  and  "property"  mean  the  aggregate 
taxable  property  of  the  decedent,  and  not  that  of  the  legatee 
or  devisee.159  The  same  rule  also  prevails  in  Pennsylva- 
nia.160 

(d)  Where  Succession  Takes  Place  for  Purposes  of  Taxation. 

The  result  of  the  authorities  as  to  the  liability  of  the  per- 
sonal estates  of  nonresident  decedents  in  a  foreign  state  is 
far  from  being  satisfactory,  especially  under  statutes  like 
those  of  New  York,  Pennsylvania,  and  Maryland.  In  the 
two  latter  states  the  cases  of  Orcutt's  Appeal 161  and  State 
v.  Dalrymple,162  where  the  facts  would  seem  to  be  mu^ch 
alike,  although  the  language  of  the  statutes  is  somewhat 
different,  are  diametrically  opposed;   the  former  following 

157  com.  v.  Smith,  5  Pa.  St.  142;  Orcutt's  Appeal,  97  Pa.  St.  179; 
State  v.  Dalrymple,  70  Md.  294,  17  Atl.  82;  In  re  Howe,  112  N.  Y. 
100,  19  N.  E.  513;  In  re  Cager's  Will,  111  N.  Y.  343,  18  N.  E.  866,  and 
chapter  3,  §  41,  and  cases  cited. 

158  Laws  1892,  c.  399,  §§  2,  22,  Appendix,  I.  e. 

159  In  re  Hoffman's  Estate,  143  N.  Y.  327,  38  N.  E.  311. 
leo  Chapter  3,  §  41. 

lei  97  Pa.  St.  185,  substantially  followed  in  Re  Enston's  Will,  113 
N.  Y.  181,  21  N.  E.  87,  by  a  divided  court.  See,  also,  In  re  Tulane, 
51  Hun,  213,  4  N.  Y.  Supp.  36;  Wallace  v.  Attorney  General,  1  Ch. 
App.  1,  per  Lord  Chancellor  Cranworth.  But  to  a  certain  extent 
such  estates  are  now  taxable  in  New  York  under  the  Laws  of  1887, 
1891,  and  1892.  See  In  re  Vinot's  Estate  (Surr.)  7  N.  Y.  Supp.  517; 
In  re  Clark's  Estate  (Surr.)  9  N.  Y.  Supp.  444;  In  re  Romaine,  127  N. 
Y.  86,  27  N.  E.  759;  In  re  Enston's  Will,  supra;  In  re  Swift,  137  N.  Y. 
77,  32  N.  E.  1096;  In  re  James,  144  N.  Y.  6,  38  N.  E.  961;  In  re 
Phipps,  77  Hun,  325,  28  N.  Y.  Supp.  330;  Id.,  143  N.  Y.  641,  37  N.  E. 
823;  In  re  Thomas,  3  Misc.  Rep.  388,  24  N.  Y.  Supp.  713.  See  ar- 
ticle in  Alb,  Law  J.  April  16,  1892,  p.  331. 

162  70  Md.  294,  17  Atl.  82;  Alvany  v.  Powell,  2  Jones,  Eq.  51.  And 
see  cases  supra. 

(191) 


§   47  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.   4 

the  fiction  of  law  as  to  intangible  property  only,  and  claim- 
ing to  tax  tangible  property,  and  the  latter  declared  public 
policy  to  prevent  discrimination  against  resident  decedents. 
Orcutt's  Appeal  is  also  opposed  by  the  rule  adopted  in  Re 
Romaine,163  and  by  Alvany  v.  Powell; 18*  and  it  has  recently 
been  distinguished  and  restricted  by  the  supreme  court  of 
Pennsylvania,  in  Re  Small's  Estate.165  But  the  question, 
which  would  seem  to  be  one  purely  of  construction,  is  of 
extreme  importance,  and  remains  unsettled  in  many  states 
where  the  succession  and  legacy  tax  laws  exist.  As,  in 
principle,  these  taxes  are  primarily  imposed,  not  upon  prop- 
erty, but  upon  the  succession  or  devolution  of  property  by 
will  or  intestate  law,  this  would  seem  to  be  the  only  theory 
upon  which  such  a  tax  can  properly  be  maintained.166 

Hence,  in  cases  of  this  character,  and  especially  where 
there  is  intestacy,  the  pivotal  question  would  often  seem  to 
be,  under  what  law  is  the  succession  had?  That  of  the 
domicile,  as  claimed  in  England  under  the  legacy  act,  or  that 
of  the  actual  situs  of  the  property?  And,  if  under  the  for- 
mer, can  there  be  a  tax  imposed  at  the  real  situs,  upon  the 
theory  that  there  is  a  succession  or  an  administration  there 
for  the  purpose  of  taxation?  A  clear  solution  of  these  ques- 
tions, so  far  as  intestates  is  concerned,  is  difficult  where,  as 
in  New  York  and  Pennsylvania,  the  statutes  speak  of  prop- 
erty "passing  under  the  intestate  laws  of  this  state."  Such 
intestate  estates  have  been  held  liable  in  the  former  state, 
under  the  amendatory  act  of  1887,167  though  not  liable  un- 

163  id. 

164  127  N.  Y.  88,  27  N.  E.  759. 

16  5  151  pa.  St.  1,  25  Atl.  23  (1892);  32  Am.  Law  Reg.  (N.  S.)  305. 

lee  in  Re  McPherson,  104  N.  Y.  306,  10  N.  E.  685,  the  court  held 
the  tax  could  be  constitutionally  imposed  whether  it  was  considered 
a  property  or  succession  tax.  See,  also,  In  re  Sherwell's  Estate,  125 
N.  Y.  379,  26  N.  E.  464.  Contra,  it  seems,  In  re  Bittinger's  Estate. 
129  Pa.  St.  338,  18  Atl.  132. 

167  in  re  Romaine,  127  N.Y.86,27  N.E.759;  48  Phila.  Legi.  Int.  365. 
(192) 


Ch.   4]        RESIDENT    AND    NONRESIDENT   DECEDENTS.  §   47 

der  the  prior  law;168  the  statute  of  1887  providing  that  "if 
such  decedent  was  not  a  resident  of  this  state  at  the  time 
of  death,  which  property  or  any  part  thereof,  shall  be  within 
this  state  or  any  interest  therein."  The  amendment  is  in- 
cluded in  the  italics,  and  the  language  would  seem  to  be 
broad  enough  to  cover  both  testates  and  intestates,  as  held 
in  the  Romaine  Case; 169  otherwise,  we  have  the  strange  re- 
sult of  a  state  taxing  one  class  of  foreign  estates, — those 
belonging  to  testates, — and  exempting  the  estates  of  those 
who  die  intestate.  The  act  of  1892  17°  now  taxes  the  trans- 
fer of  any  property,  real  or  personal,  by  will  or  intestacy,, 
belonging  to  resident  or  nonresident  decedents,  where,  as  to 
the  latter,  the  transfer  of  property  within  the  state;  and  it 
further  provides,171  the  words  "estate"  and  "property"  shall 
include  all  property,  or  interest  therein,  whether  situated 
within  or  without  the  state,  over  which  the  state  has  any 
jurisdiction  for  the  purposes  of  taxation. 

Ordinarily,  neither  personal  nor  real  property  can  have  a 
situs  in  two  states  for  the  purpose  of  succession,172  but  there 
is  no  constitutional  objection  to  a  tax  upon  the  succession 
in  two  states; 173  and  as  the  situs  at  the  domicile,  where  the 
property  is  in  fact  in  a  foreign  state,  is  the  result  of  a  mere 
fiction  of  law,  and  as  the  property  of  residents  and  nonresi- 
dents receives  alike  the  equal  care  and  protection  of  such 
foreign  state,  it  would  seem  that  the  legislature  would  have 
undoubted  power,  as  had  been  done  in  Connecticut  and 
other  states,  to  make  a  special  or  particular  succession  by 
statute,  as  to  personal  property  of  nonresident  decedents  ac- 

168  in  re  Tulane,  51  Hun,  213,  4  N.  Y.  Supp.  36;  In  re  Enston's  Will, 
113  N.  Y.  181.  21  N.  E.  87. 

169  I(J. 

i7o  Laws  1892,  c.  399,  §  1. 
i7i  Laws  1892,  c.  399,  §  22. 

172  Kintzing  v.  Hutchinson,  34  Leg.  Int.  365,  Fed.  Cas.  No.  7,834. 

173  Chapter  2,  §  19. 

LAW  INHER. 13  (193) 


§   47  RESIDENT   AND   NONRESIDENT    DECEDENTS.  [Ch.  4 

tually  within  its  jurisdiction,  whether  tangible  or  intangible, 
for  the  purpose  of  taxation.174  Otherwise,  the  fiction  would 
be  paramount  to  a  positive  statute.175 

While  the  situs  of  personal  property  ordinarily  follows 
tha  domicile  of  the  owner,  for  particular  purposes  some 
species  of  personal  property  may  have  an  actual  situs  dis- 
tinct from  the  legal  one,  and  is  then  taxable  under  these 
statutes.176 

At  least,  no  constitutional  ground  would  seem  to  be  in- 
vaded where  either  the  person  owning  the  property,  or  the 
property  itself,  is  actually  within  the  jurisdiction  of  the  tax- 
ing state.177 

The  state  may  give  shares  of  stock  held  by  individuals  a 
special  or  particular  situs  for  the  purpose  of  taxation,  and 
may  provide  special  modes  for  the  collection  of  taxes  levied 
thereon;  and  it  is  often  convenient,  as  well  as  perfectly 
just,  to  adopt  this  course.178 

Upon  principle,  if  the  tax  can  be  imposed  upon  the  tangi- 
ble personal  property  of  a  nonresident  decedent  within  the 
state,  as  held  in  Orcutt's  Appeal,179  there  would  seem  to  be 
no  just  reason  why  it  should  not  equally  be  imposed  upon 

174  See  In  re  Bittinger's  Estate,  129  Pa.  St.  338,  18  Atl.  132;  Ameri- 
can Coal  Co.  v.  Comity  Com'rs  of  Allegany  Co.,  59  Md.  185:  Cook. 
Stocks  &  Stockh.  §§  564,  566. 

175  see  Laws  Conn.  1889,  Appendix,  VII.;   c.  2,  §  26. 

17  6  in  re  Weaver's  Estate  (1895)  12  Lane.  Law  Rev.  (Pa.)  57,  citing 
Orcutt's  Appeal,  97  Pa.  St.  179;  In  re  Small's  Estate,  151  Pa.  St.  1,  25 
Atl.  23,  28;  In  re  Coleman's  Estate,  159  Pa.  St.  231,  28  Atl.  137.  See 
In  re  Phipps  (1894)  77  Hun,  325,  28  N.  Y.  Supp.  330,  affirmed  143  N. 
Y.  641,  37  N.  E.  823,  mem.  See  Pullman's  Palace  Car  Co.  v.  Pennsyl- 
vania, 141  U.  S.  IS,  11  Sup.  Ct.  876,  affirming  107  Pa.  St.  165. 

177  But  see  remarks  of  Gray,  J.,  in  Re  James,  144  N.  Y.  6,  38  N.  E. 
961. 

i7  8Cooley,  Tax'n  (2d  Ed.)  23,  citing  American  Coal  Co.  v.  County 
Com'rs  of  Allegany  Co.,  59  Md.  185;  Mayor,  etc.,  of  Baltimore  v. 
Baltimore  City  Passenger  R.  Co.,  57  Md.  31. 

179  97  Pa.  St  179. 
(194) 


Ch.  4]        RESIDENT    AND    NONRESIDENT    DECEDENTS.  §    47 

the  intangible  property  actually  within  the  taxing  state, 
and  protected  by  its  laws.180 

In  conclusion,  it  may  be  said  that  the  cases  which  exempt 
tangible  or  intangible  property  of  nonresident  decedents 
actually  within  the  taxing  state  would  seem  to  be  objection- 
able upon  several  grounds: 

First.  The  fiction  upon  which  the  rule  is  based,  exempting 
such  property,  did  not  originally  relate  to  questions  of  taxa- 
tion, but,  as  we  have  seen,181  was  based  merely  upon  ques- 
tions of  comity  between  states  or  nations.  It.  never  had  any 
application  to  creditors  of  the  deceased  in  the  state  where 
the  property  actually  was  situated,  and  should  not  exist 
against  a  state  tax  which  the  citizen  is  compelled  to  pay.182 

"The  fiction  or  maxim,  'Mobilia  personam  sequuntur,' " 
says  Comstock,  0.  J.,  in  Hoyt  v.  Tax  Com'rs,183  "is  by  no 
means  of  universal  application.  Like  other  fictions,  it  has 
its  special  uses.  It  may  be  resorted  to  when  convenience 
and  justice  so  require.  In  other  circumstances,  the  truth, 
and  not  the  fiction,  affords,  as  it  plainly  ought  to  afford,  the 
rule  of  action.      The  proper  use  of  legal  fictions  is  to  pre- 

iso  in  re  Romaine,  127  N.  Y.  88,  27  N.  E.  759;  In  re  Vinot's  Estate 
(Suit.)  7  N.  Y.  Supp.  517;  In  re  Phipps,  supra;  U.  S.  v.  Rankin,  8 
Fed.  874.  See  In  re  Tulane,  51  Hun,  213,  4  N.  Y.  Supp.  36.  See  the 
subject  discussed  Alb.  Law  J.  April  16,  1S92,  p.  33. 

isi  Supra,  §  47,  subd.  b. 

182  See  remarks  of  Lord  Brougham  in  Thomson  v.  Advocate-Gen- 
eral, 12  Clark  &  F.  28;  Bruce  v.  Bruce,  2  Bos.  &  P.  229  note;  Catlin 
v.  Hull,  21  Vt.  158,  cited  and  approved  in  Hoyt  v.  Tax  Com'rs,  23  X. 
Y.  232;  Whart.  Priv.  Int.  Law,  §§  11-13,  297;  Green  v.  Van  Buskirk, 
7  Wall.  150;  Hervey  v.  Rhode  Island  Locomotive  Works,  93  U.  S. 
664 ;  Lewis  v.  Woodford,  11  Heisk.  25 ;  Birtwhistle  v.  Vardill,  5  Barn.  & 
C.  138,  451;  Alvany  v.  Powell,  2  Jones,  Eq.  51;  State  v.  Dairy mple, 
70  Md.  249,  17  Atl.  82;  Pullman's  Palace  Car  Co.  v.  Pennsylvania,  141 
U.  S.  IS,  11  Sup.  Ct.  876. 

183  23  N.  Y.  228,  followed  in  Graham  v.  First  Nat.  Bank,  84  N.  Y. 
400,  401;  In  re  Romaine,  127  N.  Y.  86,  87,  27  N.  E.  759.  See  People 
v.  Coleman,  119  N.  Y.  137,  23  N.  E.  488. 

(105) 


§   47  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.   4 

vent  injustice,  according  to  the  maxim,  In  fictione  juris 
semper  aequitas  existat.'  *  *  *  Accordingly,  there  seems 
to  be  no  place  for  the  fiction  of  which  we  are  speaking,  in  a 
well-adjusted  system  of  taxation."  This  rule  was  recently 
followed  in  Pennsylvania.184 

And  Mr.  Justice  Gray,  of  the  United  States  supreme  court, 
has  said  of  this  maxim:  "The  old  rule  expressed  in  the 
maxim,  'Mobilia  sequuntur  personam,'  by  which  personal 
property  was  regarded  as  subject  to  the  law  of  the  owner's 
domicile,  grew  up  in  the  middle  ages,  when  movable  prop- 
erty consisted  chiefly  of  gold  and  jewels,  which  could  easily 
be  carried  by  the  owner  from  place  to  place,  or  secreted  in 
spots  known  only  to  himself.  In  modern  times,  since  the 
great  increase  in  amount  and  variety  of  personal  property 
not  immediately  connected  with  the  person  of  the  owner, 
that  rule  has  yielded  more  and  more  to  the  lex  situs, — the 
law  of  the  place  where  the  property  is  kept  and  used.185 
*  *  *  For  the  purposes  of  taxation,  as  has  been  repeat- 
edly affirmed  by  this  court,  personal  property  may  be  sep- 
arated from  its  owner;  and  he  may  be  taxed,  on  its  account, 
at  the  place  where  it  is,  although  not  the  place  of  his  own 
domicile,  and  even  if  he  is  not  a  citizen  or  a  resident  of  the 
state  which  imposes  the  tax."  186 

Second.  It  unjustly  discriminates  against  the  estates  of 
resident  decedents,  and  thus  allows  nonresidents  greater 
privileges  than  those  conferred  upon  the  former.187 

is*  In  re  Small's  Estate,  151  Pa.  St.  1,  25  Atl.  23. 

185  Story,  Conn.  Laws,  §  550;   Whart.  Confl.  Laws,  §§  297,  311. 

lac  Pullman's  Palace  Car  Co.  v.  Pennsylvania  (1891)  141  U.  S.  18, 
22,  11  Sup.  Ct.  876,  affirming  107  Pa.  St.  156.  See  the  maxim  also 
considered  in  5  Pol.  Science  Quart.  Dec.  1890,  p.  646.  In  re  Small's 
Estate,  151  Pa.  St.  1,  14,  25  Atl.  23;  approving  Hoyt  v.  Commission- 
ers, 23  N.  Y.  224,  228.  See  note  on  the  subject  by  McCarthy,  32  Am. 
Law  Reg.  April,  1893,  p.  365;  In  re  Coleman's  Estate,  159  Pa.  St. 
231,  28  Atl.  137;   In  re  Romaine,  127  N.  Y.  87,  27  N.  E.  759. 

187  id. 

(100) 


Ch.   4]        RESIDENT    AND    NONRESIDENT    DECEDENTS.  §    48 

Third.  It  permits  a  vast  amount  of  intangible  personal 
property,  under  a  mere  fiction  of  law,  suck  property  being 
protected  at  all  times  by  the  state,  to  escape  the  common 
burden  imposed  upon  like  property  belonging  to  citizens. 


§  48.     Foreign  Legacies. 

The  rule  would  appear  to  be  equally  well  established,  un- 
der these  statutes,  that  as  to  the  property  of  a  nonresident 
decedent  in  the  nature  of  legacies  or  shares,  and  termed 
"foreign  legacies,"  brought  or  sent  within  the  taxing  state 
from  abroad,  after  the  death  of  the  decedent,  there  is  no  lia- 
bility for  the  tax. 

Generally,  the  duty  is  only  imposed  upon  property  of  non- 
resident decedents  within  the  taxing  state  at  the  time  of 
death.  In  cases  of  this  character  it  is  manifest  that  the 
actual  as  well  as  a  domiciliary  situs  is  in  such  foreign  state 
when  the  ownership  in  the  legacy  accrues.  Again,  it  may 
well  be  said,  as  to  such  property,  there  is  no  succession  to 
it  under  or  by  virtue  of  the  laws  of  the  taxing  state ;  hence, 
there  would  seem  to  be  no  reason  whatever  for  imposing  a 
tax  upon  a  succession  to  such  property.188 

While,  for  the  purpose  of  raising  revenue  under  these 
laws,  it  is  declared  to  be  a  mere  matter  of  expediency 
whether  the  domicile  of  the  decedent,  or  the  situs  of  the 
property,  be  adopted  as  the  rule,  if  there  be  neither  of  these 
within  the  taxing  state,  no  government  would  impose  a  tax 

188  State  v.  Brevard,  Phil.  Eq.  141;  Alvany  v.  Powell,  2  Jones,  Eq. 
51;  State  v.  Brim,  4  Jones,  Eq.  301;  Com.  v.  Duffleld,  12  Pa.  St  277; 
In  re  Hood's  Estate,  21  Pa.  St.  106;  Orcutt's  Appeal,  97  Pa.  St.  T84; 
Drayton's  Appeal,  61  Pa.  St.  172;  In  re  Tootall's  Trusts,  23  Ch.  DIv. 
532.  See,  also,  Weaver's  Estate  (1895)  12  Lane.  Law  Rev.  57; 
In  re  Phipps  (1S94)  77  Hun,  325,  28  N.  Y.  Supp.  330,  affirmed  143  N.  Y. 
641,  37  N.  E.  823;  In  re  Thomas  (1893)  3  Misc.  Rep.  3SS,  24  N.  Y. 
Supp.  713. 

(197) 


§   49  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.   4 

upon  legatees  or  next  of  kin  merely  because  of  their  resi- 
dence within  its  jurisdiction.189 

So  where,  under  a  general  tax  law,  personal  property 
sought  to  be  taxed  belonged  to  a  nonresident,  and  was  in 
the  possession  of  one  of  several  trustees  residing  outside  the 
taxing  state,  it  has  recently  been  held  that  the  mere  fact 
that  two  of  the  trustees  resided  in  the  latter  state  did  not 
warrant  the  imposition  of  a  tax  upon  such  property.190 

§  49.     Rules  Where  Nonresident  Decedent's  Debts 
Exceed  Value  of  Estate.191 

At  law  the  settlement  of  the  estate  of  a  nonresident  dece- 
dent, together  with  the  title  to  his  property  in  a  foreign 
state,  generally  devolves  upon  a  local  administrator  in  such 
foreign  state,  whose  business  is  to  collect  the  assets,  and, 
having  satisfied  the  demands  of  creditors  in  such  state,  to 
remit  the  surplus  of  the  proceeds  to  the  executor  or  admin- 
istrator at  the  place  of  domicile,  for  distribution  among  the 
unpaid  creditors  and  next  of  kin.192 

But,  as  debts  or  other  lawful  obligations  exceeding  the 
supposed  value  of  the  estate  may  often  exist  at  the  domi- 
cile, unknown  to  local  representatives  and  tribunals,  the 
difficulty  early  suggested  itself,  in  such  cases,  of  ascertain- 
ing the  exact  amount  passing  to  the  legatee  or  devisee 
whose  interest  it  was  sought  to  tax,  and  thus  making  it  un- 
certain, to  some  extent,  whether,  should  there  be  debts,  any 

189  state  v.  Brim,  supra;  In  re  Hood's  Estate,  supra. 

19  0  People  v.  Coleman,  119  N.  Y.  137,  23  N.  E.  488;  People  v.  Bar- 
ker, 135  N.  Y.  656,  32  N.  E.  252. 

i9i  See,  also,  chapter  5,  §  52,  as  to  deduction  of  debts  upon  appraise- 
ment. 

192  in  re  Short's  Estate,  16  Pa.  St.  66;  In  re  Del  Busto's  Estate,  23 
Wkly.  Notes  Cas.  Ill;  In  re  Enston's  Will,  113  N.  Y.  181,  21  N.  E. 
87. 

(198) 


Ch.  4]       RESIDENT    AND    NONRESIDENT    DECEDENTS.  §   49 

surplus  would  exist,  and,  if  so,  the  exact  amount  which 
would  be  subject  to  taxation. 

Upon  these  grounds  it  was  held  in  Pennsylvania  that 
such  a  tax  could  not  practically  be  imposed  upon  intangible 
personal  property,  except  by  the  state  of  the  domicile,  where 
the  final  administration  of  the  estate  was  made.193 

The  same  ground  of  objection  was  raised  in  England,  un- 
der the  legacy  and  succession  laws,  as  to  all  personal  prop- 
erty of  nonresidents,194  although,  as  we  have  seen,  the  au- 
thorities in  that  country  are  not  harmonious  upon  the  sub- 
ject, and  the  succession  tax  is,  in  many  instances,  imposed 
upon  estates  of  nonresident  decedents.195 

In  New  York,  in  speaking  of  this  subject 196  the  law  of 
1885,  which  was  held  not  to  apply  to  nonresident  estates, 
Andrews,  J.,  said :  "That  [how  much  will  pass  to  collaterals] 
can  only  be  known  after  the  entire  expenses  of  administra- 
tion and  the  debts  and  liabilities  of  the  deceased  have  been 
ascertained  and  deducted  at  the  place  of  his  domicile.  Sup- 
pose a  nonresident  dies  leaving  $1,000,000  in  this  state,  and 
is  largely  indebted  at  the  place  of  his  domicile,  what  his  net 
estate  will  be  after  deducting  debts  and  expenses  of  admin- 
istration can  only  be  ascertained  at  his  domicile,  where  his 
estate  must  be  finally  administered  and  adjusted;  and  there 

193  Orcutt's  Appeal,  97  Pa.  St.  185,  186;  In  re  Short's  Estate,  16 
Pa.  St.  66;  Commonwealth's  Appeal,  34  Pa.  St.  204;  Strode  v.  Com., 
52  Pa.  St.  181;  Com.  v.  Coleman,  Id.  470,  472;  In  re  Hood's  Estate, 
21  Pa.  St.  106;  In  re  Enston's  Will,  113  N.  Y.  181,  21  N.  E.  87;  In 
re  Tulane,  51  Hun,  213,  4  N.  Y.  Supp.  36;  In  re  Del  Busto's  Estate, 
23  Wkly.  Notes  Cas.  Ill;  In  re  Bacon's  Estate,  3  Del.  Co.  Rep.  603. 

194  Wallace  v.  Attorney  General,  1  Ch.  App.  1. 

195  Supra,  p.  163;  In  re  Lovelace,  4  De  Gex  &  J.  340;  In  re  Wal- 
lop's Trust,  1  De  Gex,  J.  &  S.  356;  In  re  Tootall's  Trusts,  23  Ch.  Div. 
532. 

196  in  re  Enston's  Will,  113  N.  Y.  1S2,  21  N.  E.  87;  Danforth  and 
Finch,  JJ.,  dissenting,  and  Ruger,  C.  J.,  not  voting.  And  see  opinion 
Danforth,  J.,  at  page  185,  113  N  Y.,  and  page  87,  21  N.  E. 

(199) 


§    49  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.  4 

can  be  no  way  of  adjusting  the  estate  here,  as  there  is  no 
machinery  in  the  law  here  appropriate  to  such  a  purpose, 
and  thus  it  would  be  impractical  to  administer  this  statute." 

"The  tax,"  said  the  court  in  Orcutt's  Appeal,197  "does  not 
attach  to  the  very  article  of  property  of  which  the  deceased 
died  possessed.198  It  is  imposed  only  on  what  remains  for 
distribution  after  expenses  of  administration,  debts,  and 
rightful  claims  of  third  parties  are  paid  or  provided  for.  It 
is  on  the  net  succession  to  the  beneficiaries,  and  not  on  the 
securities  in  which  the  estate  of  the  decedent  was  invest- 
ed.199 How,  then,  is  it  possible  to  impose  a  tax  on  this 
fund,  when  it  has  never  been  judicially  ascertained  how 
much,  or  whether  any,  of  it  will  go  to  the  collateral  legatees? 
When  the  executrix  charges  herself  with  the  fund  received 
from  the  ancillary  administrator,  and  settles  her  account  in 
New  Jersey,  who  can  tell  how  much  of  it  may  be  success- 
fully claimed  by  creditors  and  others,  as  against  legatees? 
The  court  of  the  testator's  domicile  is  the  only  one  that  can 
properly  determine  how  much  of  it  will  actually  go  to  the 
collateral  legatees." 

But  it  would  seem  that  in  many  instances  these  objec- 
tions are  liable  to  be  more  theoretical  than  real.200  Assuming 
that  there  is  an  intention  to  tax  nonresident  decedents'  es- 
tates, whether  the  tax  shall  be  payable  out  of  the  specific  tax- 
able interest,  or  only  upon  the  net  surplus  of  the  whole  estate 
remaining  after  deducting  just  debts  and  liabilities  owing 
either  at  the  domicile  or  situs,  must  often  depend  upon  the 
language  of  the  statute;  and  its  practical  enforcement  must, 
like  that  of  every  statute,  depend  upon  the  circumstances  of 

I"  97  Pa.  St.  185. 

198  But  see,  per  Danforth,  J.,  In  re  Enston's  Will,  113  N.  Y.  TS5,  21 
N.  E.  87. 

199  Citing  Commonwealth's  Appeal,  supra;   Strode  v.  Com.,  supra. 

200  Wallace  v.  Attorney  General,  1<  Ch.  App.  1.  And  see  Alvany 
v.  Powell,  2  Jones,  Eq.  51;  In  re  Enston's  Will,  113  N.  Y.  185,  21 
JSL  E.  87. 

(200) 


Ch.    4]        RESIDENT    AND    NONRESIDENT    DECEDENTS.  §    49 

each  case.  From  the  authorities,  and  on  principle,  it  would 
appear  that  the  tax  can  only  fairly  be  imposed  upon  the  net 
surplus  passing  to  collaterals  after  all  just  debts  and  lia- 
bilities are  deducted  or  paid.201  Hence,  where  decedent's 
debts  in  another  state  exceed  the  value  of  the  personalty 
there,  it  is  not  liable  to  taxation.202 

A  fair  and  reasonable  opportunity  should  therefore  be  af- 
forded the  estate,  or  its  representatives,  to  show,  as  the  fact 
may  be,  either  that  the  estate  is  insolvent,  and  thus  wholly 
unable  to  pay  any  tax,  as  no  interest  will  pass  to  the  heir, 
legatee,  or  devisee,  or  that,  by  reason  of  the  existence  of  just 
and  lawful  demands  at  the  domicile  or  situs,  the  tax  should 
be  proportionately  reduced. 

In  some  states  the  tax  is  upon  the  "clear  value,"  or  "clear 
market  value,"  or  "fair  and  clear  market  value,"  of  the  es- 
tate at  decedent's  death; 203  thus  implying  that  outstanding 
debts  and  liabilities,  at  the  time  of  death,  that  are  just  and 
legal,  must  be  taken  into  consideration  by  the  court  or  ap- 
praiser, in  estimating  the  value  of  the  taxable  interest. 

201  strode  v.  Com.,  52  Pa.  St.  189,  and  cases  supra. 

202  coin.  v.  Coleman,  52  Pa.  St.  473. 

203  see  Appendix,  I.,  III.,  VII.,  Laws  Pa.  18S7,  p.  79,  §  1;  Laws 
N.  Y.  18S7,  c.  713,  §§  1,  2;  Laws  1892,  c.  399,  §  6;  Laws  Conn.  1889, 
p.  106,  c.  180.  See  In  re  Astor,  6  Dem.  Sur.  411.  Whether,  under 
the  New  York  statutes,  deductions  for  debts  can  be  made  by  the  ap- 
praiser or  court  where  they  do  not  exist  at  decedent's  death,  but 
only  arise  in  course  of  the  administration  of  the  estate,  such  as  com- 
missioners of  executors  and  expenses  of  administration,  etc.,  which 
it  has  been  the  practice  of  appraisers  or  surrogates  to  deduct,  see  In 
re  Havens  (Aug.  1,  1890)  3  N.  Y.  Law  J.  900;  In  re  Meyer  (May  26, 
1891)  5  N.  Y.  Law  J.  532;  In  re  Hope  (Feb.  13,  1S93)  8  N.  Y.  Law  J. 
1164;  In  re  Sidell,  N.  Y.  Law  J.  (March  10,  1893).  See,  also,  In  re 
Vassar,  127  N.  Y.  8,  27  N.  E.  394;  In  re  Ludlow's  Estate  (Surr.)  25 
N.  Y.  Supp.  9S9;  In  re  Millward's  Estate  (Surr.)  27  N.  Y.  Supp.  286; 
In  re  Swift,  137  N.  Y.  77,  32  N.  E.  1096.  See,  also,  In  re  Gould  (June 
18,  1S95)  13  N.  Y.  Law  J.  781,  where  it  was  held  that  all  these  items 
can  be  deducted  by  the  appraiser. 

(201) 


§    49  RESIDENT    AND    NONRESIDENT    DECEDENTS.  [Ch.   4 

And  in  New  York  the  statute  204  provides  that  whenever 
any  debts  shall  be  proven  against  the  estate  of  a  decedent 
after  the  payment  of  legacies  or  distribution  of  property 
from  which  the  said  tax  has  been  deducted,  or  upon  which 
it  has  been  paid,  and  a  refund  is  made  by  the  legatee  or  dev- 
isee, a  proportion  of  the  tax  so  paid  shall  be  repaid  to  him 
by  the  executor,  if  the  said  tax  has  not  been  paid  to  the 
county  treasurer,  or  by  them  if  it  has  been  so  paid.205 

Where  the  testator  dies  possessed  of  personal  property  in 
England,  as  well  as  abroad,  the  application  for  a  return  of 
the  duty  on  the  ground  of  debts  must,  under  the  English  law, 
be  made  without  taking  into  consideration  the  foreign  as- 
sets; and,  should  he  have  incurred  foreign  debts,  these  must 
be  paid  out  of  the  foreign  assets,  as  far  as  they  will  be  suffi- 
cient to  satisfy  them.  But  should  the  testator  die  out  of 
England,  leaving  assets  in  the  latter  country,  for  which  it 
is  necessary  to  take  out  a  grant,  no  application  for  the  re- 
turn of  any  portion  of  the  probate  duty  in  respect  of  debts 
incurred  abroad  will  be  entertained;  for  the  executor  who 
has  taken  out  the  grant  there,  after  paying  any  debts  in- 
curred in  England,  in  respect  of  which  any  application  for 
a  return  of  duty  may  be  made,  will  transmit  the  remainder 
of  the  assets  to  the  representative  of  the  deceased  in  the 
country  where  he  died,  to  be  dealt  with  according  to  the  law 
of  that  country.206 

204  Laws  18S7,  §  10;  Laws  1892,  c.  399,  §  6.  See  St.  Pa.  Appendix, 
III.,  §  11. 

205  See  In  re  Enston's  Will.  113  N.  Y.  186,  21  N.  E.  87.  See,  under 
this  section,  In  re  Howard,  54  Hun,  305,  7  N.  Y.  Supp.  594;  citing1 
Dewey  v.  Supervisors  of  Niagara  Co.,  62  N.  Y.  294;  In  re  Hall's 
Estate  (Sup.)  7  N.  Y.  Supp.  595;  also,  In  re  McMahon,  1  How.  Pr. 
(N.  S.)  270.  Redf.  Sur.  Prac.  (4th  Ed.)  p.  586,  considers  this  section 
12,  Act  1887,  open  to  constitutional  objection. 

206  Layton,  Succ.  &  Leg.  Duties,  p.  250;  citing  Reg.  v.  Commission- 
ers of  Stamps  &  Taxes  (Ostell's  Case)  18  Law  J.  Q.  B.  201. 

(202) 


Ch.  6]  APPRAISER    AND    APPRAISEMENT.  §   50 

CHAPTER  V. 

APPRAISER  AND  APPRAISEMENT. 

§    50.    Assessments  and  Assessors  Generally,  and  Rules  Regulating. 

51.  Appointment.  Powers,  and  Duties  of  Appraisers. 

52.  Land   and   Personal   Estate,   and   Where  Appraised— "Fair 

Market  Value." 

53.  Life  Estates,  Annuities,  Legacies,  and  Terms  of  Years. 

54.  Remainders,  Contingent,  and  Future  Estates. 

(a)  Under  Acts  of  Congress. 

(b)  In  Maryland  and  Connecticut. 

(c)  In  Pennsylvania. 

(d)  New  York. 

(1)    Provisions  Act  1892. 

(a)  Vested  Estates  and  Remainders. 

(b)  Contingent  Estates— When  not  Appraisable  at 

Death. 

(c)  May  be  Appraised  on  Vesting. 

(d)  When  Appraisable  at  Death. 

55.  Effect  of  Appraisement  and  Appeals  Therefrom. 

§  50.     Assessments   and   Assessors   Generally,  and 
Rules  Regulating. 

It  is  not  inappropriate,  in  connection  with  the  inheritance 
tax,  to  refer  here  to  some  of  the  rules  at  law  regulating  and 
governing  assessments  and  assessors  generally.  An  assess- 
ment under  general  tax  laws  is  defined  as  the  making  out  of 
a  list  of  property  and  fixing  its  valuation  or  appraisement. 
It  is  so  far  an  inseparable  incident  of  taxation  that  no  right 
of  action  arises  until  a  legal  assessment  is  made.1 

Proceedings  for  the  assessment  of  property  are  of  a  judi- 
cial character,  and  assessors  or  appraisers,  in  making  assess- 
ments, act  judicially.2 

i  Hil.  Tax'n,  p.  291,  §§  2,  3. 

*  In  re  McLean  (1893)  138  N.  Y.  158,  33  N.  E.  821;   Van  Derventer 

(203) 


§    50  APPRAISER    AND    APPRAISEMENT.  [Ch.   5 

Their  decisions,  as  a  general  rule,  will  not  be  reviewed, 
upon  questions  of  value  or  appraisement,  where  the  officers 
proceed  upon  information  or  evidence  tending  to  support 
their  decisions;  and  the  courts  will  not  generally  look  into 
questions  of  fact  as  to  the  amount  or  value  of  the  personal 
estate  of  persons  assessed.  These  are  questions  for  the 
judgment  of  the  assessors,  and  their  decisions  will  ordinarily 
be  sustained.3 

But  it  is  essential  to  the  validity  of  every  assessment  that 
the  statute  under  authority  of  which  it  is  made  should  be 
complied  with  in  every  substantial  particular.4 

These  principles  apply  to  the  appraisement  under  the  in- 
heritance and  legacy  tax  laws,  and  to  some  extent  the  sur- 
rogate acts  as  an  assessor.5  As  was  said  in  Re  Wolfe,6 
in  construing  the  act  of  1S87:  "The  proper  construction  of 
this  act  makes  of  the  surrogate  the  assessing  and  taxing 
officer,  and,  as  such,  the  representative  of  the  state  for  pur- 
poses relating  to  the  appraisement  and  taxation  of  prop- 
erty. *  *  *  The  surrogate  should  proceed  with  the  as- 
sessment of  the  tax  without  notice  to  any  state  offi- 
cial." 7  "There  is  no  difference  between  the  principle  upon 
which  the  surrogate  acts  in  proceedings  to  assess  property 
for  taxation  under  the  act,  and  that  upon  which,  in  the  gen- 

v.  Long  Island  City,  139  N.  Y.  133,  34  N.  E.  774;   In  re  Ullmann,  137 
N.  Y.  403,  33  N.  E.  480,  reversing  67  Hun,  5,  21  N.  Y.  Supp.  758. 

3  People  v.  Barker,  139  N.  Y.  60,  35  N.  E.  208;  People  v.  Hicks, 
105  N.  Y.  189,  11  N.  E.  653. 

*  Sanders  v.  Downs,  141  N.  Y.  422,  36  N.  E.  391. 

e  In  re  Wolfe,  137  N.  Y.  205,  33  N.  E.  156;  In  re  Ullmann,  137  N. 
Y.  403,  33  N.  E.  480;  In  re  Smith's  Estate  (Surr.)  23  N.  Y.  Supp.  762; 
Weston  v.  Goodrich,  86  Hun,  194,  33  N.  Y.  Supp.  382;  McKean's 
Estate,  29  Pa.  Law  J.  (N.  S.)  299;  Com.  v.  Freedley,  21  Pa,  St.  36. 

eld. 

7  But  under  Act  1S92,  c.  399,  §§  11,  12,  notice  for  the  appointment 
of  appraisers  under  the  act  must  be  given  to  the  county  treasurer  or 
comptroller. 
(204) 


Ch.   5]  APPRAISER    AND    APPRAISEMENT.  §    50 

eral  system  of  taxation  in  the  state,  tax  assessors  act  in  the 
assessment  of  persons  or  property  for  purposes  of  taxation." 
The  principles  upon  which  the  surrogate  and  town  assess- 
ors act  are  similar.8  In  Pennsylvania  the  appraisement  of 
land  under  these  statutes  is  made  in  the  same  manner  as 
land  is  assessed  for  general  taxation.9  In  New  York,  under 
the  act  of  1887, 10  it  is  provided  that  the  surrogate  shall, 
from  the  appraiser's  report,  assess  and  fix  the  cash  value  of 
all  estates,  and  the  tax  to  which  the  same  is  liable;  and  it 
is  held  that  this  direction  to  assess  involved  the  necessity 
as  well  as  the  power  to  determine  the  question  of  liability, 
as  much  as  it  does  in  the  case  of  assessors  under  general 
tax  laws.  In  this  respect  the  surrogate  is  made  an  assess- 
or. He  must  decide  whether  the  property  is  taxable,  for 
that  fact  lies  at  the  foundation  of  his  jurisdiction,  and  is  of 
the  essence  of  his  right  to  proceed  with  the  assessment.11 
So  under  the  New  York  statutes  the  surrogate  has  original 
and  exclusive  jurisdiction  as  assessor  and  taxing  officer,  in 
the  first  instance,  for  all  purposes  relating  to  the  appraise- 
ment and  taxation  of  property,  and  no  power  is  conferred 
upon  the  supreme  court  of  the  state,  in  an  equity  actioo, 
either  to  assess  or  determine  such  liability,  in  the  first  in- 
stance.12 

In  Weston  v.  Goodrich,13  it  was  urged  that,  inasmuch  as 
the  supreme  court  and  the  surrogate's  court  had  concurrent 
jurisdiction  in  many  instances,  and  as  the  taxing  act  did 

s  In  re  Smith's  Estate,  supra. 

»  McKean's  Estate,  supra;    Com.  v.  Freedley,  supra. 

io  Chapter  713,  §§  1-13.    See  Laws  1892,  c.  399,  §  13. 

ii  In  re  Wolfe  (1893)  supra,  affirming  66  Hun,  389,  21  N.  Y.  Supp. 
515,  522. 

12  Weston  v.  Goodrich,  86  Hun,  194,  33  N.  Y.  Supp.  382.  But  see 
Laws  1895,  c.  556,  amending  Laws  1892,  c.  399,  §  13;  In  re  Ullmann, 
supra. 

is  id, 

(205) 


§   50  APPRAISER    AND    APPRAISEMENT.  [Ch.   5 

not  in  terms  exclude  any  court,  that  the  supreme  court,  as 
a  court  of  general  jurisdiction,  might  also  assess  and  deter- 
mine the  tax,  if  incidental  to  the  complete  determination  of 
an  estate  of  which  it  had  taken  jurisdiction  for  some  special 
purpose.  In  overruling  this  contention,  Parker,  J.,  said: 
"The  premise,  however,  is  faulty,  in  that  the  statute  does 
not  confer  jurisdiction  upon  the  surrogate's  court  as  such 
in  the  first  instance  to  assess  and  determine  the  tax.  The 
surrogate,  as  a  taxing  officer,  after  the  appraiser  has  ap- 
praised the  property,  enters  his  order  fixing  the  tax  'as  of 
course,'  and  thereafter  any  person  aggrieved  may  appeal 
therefrom  to  the  surrogate.  By  both  the  initial  act  of  1885 
and  the  subsequent  one  of  1892  a  special  state  tax  not  be- 
longing to  the  system  of  general  taxation  was  created.  In 
character  it  was  so  entirely  different  from  the  general  plan 
of  taxation  that  special  agencies  were  necessary  for  its  en- 
forcement. What  those  agencies  should  be,  and  under 
what  rules  and  regulations  they  should  proceed  to  enforce 
the  collection  of  the  tax,  the  legislature  alone  had  power 
to  determine.  *  *  *  Instead  of  providing  for  the  ap- 
pointment of  assessors  or  collectors  or  tax  officers  under 
some  other  name,  to  execute  the  provisions  of  the  law,  the 
legislature,  not  unwisely,  determined  that  the  surrogates  of 
the  several  counties  of  the  state  were  in  a  position  to  more 
economically  and  effectively  enforce  the  collection  of  the 
tax  than  any  other  agency  that  could  be  devised,  and  so 
the  surrogates  were  made  special  taxing  officers,  and  char- 
ged with  the  duty  of  enforcing  the  collection  of  this  special 
state  tax  upon  such  notice  to  those  interested,  and  in  the 
manner  provided  by  the  statute.  That  the  statute  consti- 
tuted the  surrogate,  and  he  alone  the  assessing  and  taxing 
officer,  and,  as  such,  the  only  representative  of  the  state, 
in  the  first  instance,  for  all  purposes  relating  to  the  ap- 
praisement and  taxation  of  property,  will  clearly  appear 
(206) 


Ch.  5]  APPRAISER    AND    APPRAISEMENT.  §   50 

from  a  brief  reference  to  certain  of  its  provisions.14  *  *  * 
It  is  clear  that  the  initial  steps  which  the  statute  requires 
the  surrogate  to  take  are  those  of  taxing  officers,  and  not 
of  judges.  He  appoints  an  appraiser,  to  appraise  the  cash 
value  of  the  property.  Upon  the  coming  in  of  the  report, 
he  may  enter  an  order  determining  the  cash  value  of  the 
estate;  *  *  *  but  the  party  aggrieved  may  take  an  ap- 
peal from  the  order,  *  *  *  and  then,  for  the  first  time, 
the  procedure  takes  on  a  judicial  character.  But  it  is  no 
more  so  than  that  of  a  board  of  assessors  who  are  required 
to  give  public  notice  of  the  completion  of  the  assessment 
roll,  and  the  time  when  they  will  hear  all  parties  aggrieved, 
at  which  time  those  who  are  dissatisfied  may  appeal  to  the 
board  of  assessors,  upon  affidavits  and  other  proofs,  to  make 
corrections  of  the  assessment  roll,  in  so  far  as  it  affects 
them." 

But  under  an  amendment  recently  passed  in  New  York  (in 
1895),15  jurisdiction  is  now  conferred  upon  a  justice  of  the 
supreme  court  in  the  district  where  decedent  resided,  with- 
in two  years  after  the  entry  of  an  order  of  the  surrogate 
assessing  and  fixing  a  tax,  to  grant  a  reappraisement  of 
such  estate,  upon  the  application  of  the  state  comptroller, 
based  upon  his  belief  that  the  first  appraisal  was  fraudu- 
lently, collusively,  or  erroneously  made.  Such  appraiser 
shall  have  the  same  powers  as  an  ordinary  appraiser  has 
under  the  act.  This  report  shall  be  filed  with  the  justice 
by  whom  he  is  appointed,  and  the  same  proceedings  may  be 
taken  before  him  as  before  the  surrogate.  His  determina- 
tion and  assessment  shall  supersede  the  determination  and 
assessment  of  the  surrogate,  and  shall  be  filed  by  such  jus- 
tice in  the  office  of  the  state  comptroller. 

Again,  the  property  appraisable  and  taxable  under  the 

I*  Citing  Laws  1892,  c.  399,  §§  10,  11,  13. 

1 6  Appendix,  I.  e,  Laws  1895,  c.  55G,  amending  Laws  1892,  c.  399, 
§13. 

(207) 


§    50  APPRAISER    AND    APPRAISEMENT.  [Ch.  5 

inheritance  tax  is  not  merely  confined  to  property  which 
is  taxable  under  general  tax  laws.  This  was  held  upon 
the  question  as  to  whether  a  policy  of  insurance  upon  de- 
cedent's life  was  assessable  and  taxable  by  means  of  an 
inheritance  tax.  In  holding  it  was,  the  court  said: 16  "The 
taxable  transfer  law  has  no  reference  or  relation  to  the 
general  law.  The  two  acts  are  not  in  pari  materia.  While 
the  object  of  both  is  to  raise  revenue  for  the  support  of  the 
government,  they  have  nothing  else  in  common.  Nearly 
sixty  years  intervened  between  the  passage  of  the  earlier 
and  the  later  statute,  and  the  latter  was  enacted  under  dif- 
ferent conditions  from  the  former.  It  proceeds  upon  a  new 
theory,  of  the  right  of  government  to  tax  and  establish  a 
new  system  of  taxation.  It  taxes  the  right  of  succession  to 
property,  and  measures  the  tax  in  the  method  specifically 
prescribed.  All  property  having  an  appraisable  value  must 
be  considered,  whether  it  is  such  as  might  be  taxed  under 
the  general  law  or  not.  Many  kinds  of  property  might  be 
enumerated  which  are  not  assessable  under  the  general  law, 
but  which  are  appraisable  under  the  collateral  inheritance 
act.  The  definition  of  the  different  kinds  of  property  which 
the  legislature  has  incorporated  in  the  general  tax  law,  for 
the  purpose  of  that  law,  cannot  be  imported  into  the  col- 
lateral inheritance  tax  law,  upon  any  sound  principle  of 
statutory  construction."  Under  the  legacy  acts  of  congress, 
money  received  on  life  insurance,  and  distributed  to  heirs, 
was  taxable;  but  under  the  succession  acts,  life  insurance 
money  for  a  policy  taken  out  by  another  for  the  assured  was 
not  subject  to  the  tax.17 

16  In  re  Knoedler's  Estate  (1893)  140  N.  Y.  379,  35  N.  E.  601,  af- 
firming 68  Hun,  150,  22  N.  Y.  Supp.  608. 

it  3  int.  Rev.  Rec.  140.    For  questions  as  to  liability  to  pay  duty 
on  policies  of  insurance  under  the  English  law,  see  Attorney  General 
v.  Yelverton,  7  Jur.  (N.  S.)  1250;   Oldfield  v.  Preston,  3  De  Gex,  F. 
&  J.  398;  In  re  Jenkinson,  24  Beav.  64. 
(208) 


Ch.  5]  APPRAISER    AND    APPRAISEMENT.  §   51 

§  61.     Appointment,  Powers,  and  Duties  of 
Appraiser.18 

The  proceeding  for  the  appointment  of  an  appraiser,  the 
duties  of  such  appraiser,  and  the  method  by  which  property 
subject  to  succession  or  legacy  taxation  is  to  be  valued  or 
appraised,  are  matters  regulated  by  statute.19 

An  appraiser  should  be  appointed  only  where  specific 
legacies  subject  to  the  tax  are  given,  or  where  taxable  in- 
heritances exist,  or  estates  in  fee  are  devised,  or  remain- 
ders, annuities,  life  estates,  or  terms  of  years  are  created.20 

The  appraiser  may  compel  payment  of  his  fees  by  man- 
damus against  the  county  treasurer.21 

In  New  York  he  is  now  required  22  to  fix  the  fair  market 
value,  at  the  time  of  the  transfer  thereof,  of  property  subject 
to  the  tax;  and,  by  an  act  passed  in  New  York,  in  1891,23 
it  is  also  provided  that  whenever,  by  reason  of  the  provi- 
sions of  any  law,  it  shall  become  necessary  to  appraise,  in 
whole  or  in  part,  the  estate  of  any  deceased  person,  the  per- 
sons whose  duty  it  shall  be  to  make  such  appraisal  shall 

is  See,  also,  chapter  7,  §  62.  An  appraiser  who  takes  any  fee  or 
reward  is  guilty  of  a  misdemeanor  in  New  York.  Laws  1S93,  p.  1725, 
c.  G92,  §  48. 

i9  See  statutes,  Appendix,  I.,  III.,  VII.,  VIII.,— Laws  N.  Y.  1892, 
c.  399,  §§  11,  12;  Laws  N.  Y.  1SS7,  e.  713,  §§  2,  13,  14;  Laws  Pa. 
1SS7,  p.  79,  §§  12,  13;  Laws  Conn.  1SS9,  p.  106,  c.  180,  §§  2,  12;  2 
Code  Md.  18S8,  p.  1242,  §§  104,  106,  et  seq.;  Laws  111.  (By  James  B. 
Bradwell)  1895,  p.  213,  §  11.  See  statute,  Appendix,  X.  For  forms 
relating  to  appraisements,  etc.,  in  New  York,  see  Appendix,  I.;  In 
re  Astor,  6  Dem.  Sur.  402. 

20  in  re  Jones,  5  Dem.  Sur.  30,  19  Abb.  N.  C.  221. 

21  In  re  Murray,  Bartlett,  J.,  Kings  Co.,  N.  Y.,  unreported. 

22  Laws  1892,  c.  399,  §  11.  The  same  under  St.  111.  1895,  §  11,  Ap- 
pendix, X. 

23  Laws  1891,  c.  34,  §  1.    See  Appendix,  I  (f). 

LAW  INHER. 14  (209) 


§    51  APPRAISER    AND    APPRAISEMENT.  [Ch.   5 

value  the  real  estate  at  its  full  and  true  value,  taking  into 
consideration  actual  sales  of  neighboring  real  estate  simi- 
larly situated  during  the  year  immediately  preceding  the 
date  of  such  appraisal,  if  any;  and  they  shall  value  all  such 
property,  stocks,  bonds,  or  securities  as  are  customarily 
bought  or  sold  in  open  markets  in  the  city  of  New  York  or 
elsewhere,  for  the  day  on  which  such  appraisal  or  report 
may  be  required,  by  ascertaining  the  range  of  the  market, 
and  the  average  of  prices  as  thus  found,  running  through 
a  reasonable  period  of  time.  This  statute  is  important,  but 
how  far  it  applies  to  appraisements  under  the  inheritance 
tax  laws  does  not  appear  to  have  been  determined.  It 
would  seem  to  apply  to  all  appraisements.  Under  the 
Pennsylvania  statute,  he  is  required  to  fix  the  value  of  es- 
tates subject  to  the  tax,  and  to  make  a  "fair  and  conscion- 
able"  appraisement  of  such  estates,  and  to  assess  and  fix 
the  cash  value  of  all  annuities  and  life  estates.24  And  by  an 
amendment  to  this  statute,  passed  in  1895,*  the  registers  of 
wills  are  authorized,  with  the  approval  of  the  auditor  gen- 
eral, to  appoint  expert  appraisers. 

As  it  is  primarily  the  duty  of  the  executor  to  apply  for 
the  appraisement,  under  the  New  York  statute,  the  power 
given  to  the  surrogate  to  appoint  an  appraiser  of  his  own 

24  See  statutes,  Appendix,  III.,  §  12;  In  re  Goldstein's  Estate,  16 
Phila.  319;  In  re  Kaas'  Estate,  45  Leg.  Int.  217;  Commonwealth's 
Appeal  (Cooper's  Estate)  127  Pa.  St.  435,  17  Atl.  1094;  and  cases 
supra.  As  to  appraisement  of  partnership  interests  and  assets,  see 
Commonwealth's  Appeal  (Fagely's  Estate)  12S  Pa.  St.  604,  18  Atl. 
386;  In  re  Wheeler's  Estate  (1892)  1  Misc.  Rep.  450,  22  N.  Y.  Supp. 
1075.  For  mode  of  ascertaining  duty  under  English  legacy  and  suc- 
cession acts,  see  36  Geo.  III.  c.  52,  §  22;  16  &  17  Vict.  c.  51,  §§  10, 
21,  22,  et  seq.;  Attorney  General  v.  Earl  of  Sefton,  11  H.  L.  Cas. 
257,  269,  2  Hurl.  &  C.  362;  Attorney  General  v.  Dardier,  11  Q.  B. 
Div.  16. 

*  See  Appendix,  III.,  Laws  1895,  No.  243,  p.  325. 

(210) 


Ch.   5]  APPRAISER    AND    APPRAISEMENT.  §   51 

motion  is  not  intended  to  relieve  the  representatives  of  the 
estate  from  their  duty  in  this  respect; 25  and  where  the  leg- 
acies are  in  cash  the  court  or  surrogate  fixes  and  assesses 
the  tax  upon  the  face  value  thereof,  and  no  appraiser  is  nec- 
essary.28 

The  appraiser  is  not  appointed  to  fix  the  value  of  prop- 
erty which  is  not  subject  to  the  tax.27 

An  appraiser,  will  not  be  appointed,  under  the  transfer 
act,  for  the  purpose  of  procuring  an  adjudication  as  to  the 
liability  of  the  estate,  where  the  petitioner  swears  to  the 
belief  that  no  portion  of  the  estate  is  liable  to  the  tax.  The 
act  only  provides  for  the  appointment  of  an  appraiser  where 
the  estate  is  subject  to  the  payment  of  the  tax,28  and  an 
appraiser  will  only  be  appointed  to  take  proof  and  report 
upon  an  application  submitted  therefor  containing  a  state- 
ment of  the  facts  involved.29 

An  appraiser  will  not  be  dispensed  with  where  the  estate 
consists  of  a  mortgage  the  value  of  which  may  exceed  its 
face.30 

The  object  of  the  appraisement,  as  well  as  the  duty  of 
the  appraiser,  is  not  to  determine  whether  the  estate  is  sub- 

25  Frazer  v.  People  (Surr.)  3  N.  Y.  Supp.  134.  But  see  In  re  Far- 
ley. 15  N.  Y.  St.  Rep.  727. 

2  6  in  re  Astor,  6  Dem.  Sur.  402;  Id.  (Surr.)  2  N.  Y.  Supp.  630;  In 
re  Jones,  5  Dem.  Sur.  30;  In  re  Bird's  Estate  (Surr.)  11  N.  Y.  Supp. 
895;  In  re  McGowan's  Estate,  3  N.  Y.  Law  J.  (July  30,  1890)  p.  SSS; 
In  re  Pond,  N.  Y.  Daily  Reg.  May  25,  1SS9;  In  re  Somerville  N.  Y. 
Law  J.  Jan.  21,  1893.  Contra,  In  re  Peck's  Estate  (Surr.)  9  N.  Y. 
Supp.  465.     As  to  $500  legacies,  see  chapter  3,  §  41. 

27  in  re  Astor  (Surr.)  2  N.  Y.  Supp.  630;  In  re  Jones,  19  Abb.  N. 
C.  221;  In  re  Cabn,  9  N.  Y.  Law  J.  April  13,  1S93,  p.  116. 

2  8  Laws  1S92,  c.  399. 

29  In  re  Cabn  (April  13,  1893)  9  N.  Y.  Law  J.  116,  citing  In  re 
Wolfe,  137  N".  Y.  214,  33  N.  E.  156. 

so  In  re  Somerville  (Jan.  21,  1S93)  8  N.  Y.  Law  J.  p.  956. 

(211) 


§    51  APPRAISER    AND    APPRAISEMENT.  [Ch.  5 

ject  to  the  tax,  but  simply  to  ascertain  the  value  of  the 
estate;  and  where  it  is  not  subject  to  be  assessed  with  the 
tax  the  entire  proceeding  is  a  nullity,  for  it  is  only  as  to 
estates  that  are,  or  shall  be,  subject  to  the  payment  of  the 
tax,  that  the  register  has  any  power  for  the  purpose  of  ap- 
praisement and  assessment;  and  the  owner  of  the  estate  is 
not  bound  to  submit  the  question  of  his  liability  to  pay  the 
tax  either  to  the  register  or  to  the  appraiser.31  The  ap- 
praisement, as  a  general  rule,  should  be  restricted  to  the 
taxable  estate  or  interest, — that  only  being  liable  to  the 
tax, — and  should  not  include  the  general  property  of  the 
decedent,32  unless  it  is  all  liable  to  taxation.33  Under  the 
laws  of  New  York  and  Pennsylvania  the  general  estate  of 
the  decedent  is  liable  to  taxation.  The  tax  is  imposed 
upon  that.34  Where  the  estate  is  insufficient  to  pay  leg- 
acies in  full,  and  the  will  provides  that  legatees  should  re- 
ceive their  proportionate  shares,  the  appraisers  should  re- 
port the  proportionate  value  of  each  share.  No  tax  can  be 
determined  until  their  proportionate  value  has  been  ascer- 
tained.35 

The  duties  of  the  appraiser,  under  the  New  York  statute, 
were  defined  by  Surrogate  Ransom  in  Re  Astor:36     He 

si  Stinger  v.  Com.,  26  Pa.  St.  424,  429;  In  re  Kaas'  Estate,  45  Leg. 
Int.  217.     But  see  In  re  Astor,  6  Dem.  Sur.  410. 

32  In  re  Jones,  5  Dem.  Sur.  30;  In  re  Robertson,  Id.  92;  In  re  Floyd 
(March  3,  1891)  4  N.  Y.  Law  J.  1378.  But  see  Com.  v.  Kerchner,  24 
Wkly.  Notes  Cas.  260;  Com.  v.  Boyle,  2  Del.  Co.  Rep.  335;  chapter 
3,  §  41. 

33  In  re  Swift  (Surr.)  16  N.  Y.  Supp.  193;  Id.  (Sup.)  19  N.  Y.  Supp. 
292;  Id.,  reversed  on  another  point,  137  N.  Y.  77,  32  N.  E.  1096. 

34  in  re  Hoffman's  Estate,  143  N.  Y.  327,  38  N.  E.  311.  See  chap- 
ter 3,  §  41. 

ss  in  re  O'Sullivan,  N.  Y.  Law  J.  Oct.  23,  1890;   In  re  Somerville 
(Jan.  21,  1893)  8  N.  Y.  Law  J.  956. 
3  6  6  Dem.  Sur.  415. 
(212) 


Ch.   5]  APPRAISER    AND    APPRAISEMENT.  §    51 

should  report  any  property,  estate,  or  interest  therein  sub- 
ject to  the  tax.37  It  is  not  his  duty  to  report  exemptions,38 
or  to  fix  the  value  of  property  not  subject  to  the  tax;  and, 
where  he  has  not  reported  all  property  that  is  subject  there- 
to, exception  may  be  raised  upon  the  hearing  on  his  report, 
and,  where  the  exception  is  sustained,  the  report  will  be 
sent  back  for  further  appraisement.39  And  where  the  ap- 
praiser is  in  doubt  regarding  the  liability  of  any  property, 
he  should  report  it  as  subject  to  the  tax.40  He  had  no  pow- 
er, under  the  New  York  acts  in  existence  prior  to  1892,  to 
take  testimony  under  oath,41  but  now,  by  the  transfer  act 
of  1892,42  such  power  is  conferred,  as  he  has  power  to  issue 
subpoenas  to  compel  the  attendance  of  witnesses  before  him, 
and  to  take  the  evidence  of  such  witnesses,  under  oath,  con- 
cerning such  property,  and  the  value  thereof.  The  same 
power  is  conferred  upon  the  appraiser  under  the  Illinois 
statute.43  In  Pennsylvania  it  would  seem  that  such  power 
is  conferred.44  All  papers  relating  to  matters  before  the 
appraiser,  should  be  submitted  to  him  before  he  makes  his 
report  to  the  surrogate,  otherwise,  the  matter  will  be  re- 
ferred to  him  to  proceed  de  novo.45  The  names  of  all  per- 
sons entitled  to  notice  should  be  given  in  the  order  appoint- 

37  Laws  1SS5,  c.  4S3;  Laws  18S7,  c.  713,  §  13,— Appendix,  I.;  In  re 
Wallace's  Estate  (Suit.)  4  N.  Y.  Supp.  465. 

ss  in  re  Vanderbilt's  Estate  (Surr.)  10  N.  Y.  Supp.  239;  In  re  Mc- 
Gowan's  Estate  (July  30,  1890)  3  N.  Y.  Law  J.  888. 

39  in  re  Matthews'  Estate,  N.  Y.  Law  J.  July  27,  1889;  In  re  Jones' 
Estate  (July  31,  1890)  3  N.  Y.  Law  J.  896;  In  re  Benet's  Estate,  N.  Y. 
Daily  Reg.  March  4,  1889. 

40  In  re  Hendricks,  3  N.  Y.  Supp.  2S1;  In  re  McGowan's  Estate, 
supra;    In  re  Floyd,  supra. 

4i  In  re  Astor,  6  Dem.  Sur.  410. 

42  Chapter  399,  §  12. 

4  3  Act  1895,  Appendix,  X.,  §  11.. 

44  In  re  Kaas'  Estate,  45  Leg.  Int.  217. 

4  5  in  re  Jones'  Estate  (July  31,  1S90)  3  N.  Y.  Law  J.  896. 

(213) 


§   51  APPRAISER    AND    APPRAISEMENT.  [Ch.  5 

ing  the  appraiser.  To  these  he  must  give  notice  of  the  pro- 
ceeding,48 and  he  should  also  state  in  his  report  whether 
any  other  persons  claim  any  interest  in  the  property  ap- 
praised; 47  and  all  parties  notified  have  the  right  to  attend 
before  him,  and  to  be  heard  on  the  questiou  of  the  value  of 
the  property,  and  its  or  their  liability  to  the  tax.48  Under 
the  act  of  1892  49  this  notice  must  also  be  given  to  the  coun- 
ty treasurer  or  comptroller.  No  such  notice  to  these  offi- 
cials or  to  any  state  official,  was  required  under  the  acts  in 
existence  prior  to  1892. 50  As  to  persons  not  notified  or 
heard,  the  proceedings  are  void.51  Under  general  tax  laws, 
in  order  to  make  an  assessment  judicially  valid,  there  must 
be  notice  to  the  party  interested  in  the  determination,  and 
an  opportunity  to  be  heard.52 

Upon  a  subsequent  occasion,  in  defining  the  duties  of  the 
appraiser,  Surrogate  Ransom  said,53  in  a  case  where  it  was 
objected  that  the  appraiser  had  no  power  to  construe  clauses 
of  the  will  for  the  purpose  of  reporting  legacies  liable  to 
the  tax:  "It  is  certainly  the  appraiser's  duty  to  examine 
the  will  to  see  what  its  provisions  are,  and  as  certainly  his 
duty  to  call  the  attention  of  the  surrogate  to  any  facts  that 
appear  to  him  as  constituting  sufficient  reasons  for  report- 
ing such  legacies  as  subject  to  the  tax.     His  duty  is  to  place 

46  Laws  1S92,  c  399,  §  12. 

47  in  re  Astor,  5  Deiii.  Sur.  410;  In  re  Vanderbilt's  Estate  (Surr.) 
10  N.  Y.  Supp.  293;  In  re  McPherson,  104  N.  Y.  306,  10  N.  E.  685; 
Coxe's  Appeal,  1  Purd.  Dig.  (10th  Ed.)  218,  note. 

4  8  in  re  Astor,  supra.     But  see  Stinger  v.  Com.,  26  Pa.  St.  424. 

49  Appendix,  I.  e,  Laws  1892,  c.  399,  §  12. 

eo  In  re  Wolfe,  137  N.  Y.  205,  33  N.  E.  156. 

6i  In  re  Cockey,  8  N.  Y.  Law  J.  March  21,  1893,  p.  1507. 

52  People  v.  Gilon,  121  N.  Y.  551,  558,  24  N.  E.  944;  Stuart  v.  Pal- 
mer, 74  N.  Y.  183,  190. 

ea  In  re  MeGowan's  Estate,  3  N.  Y.  Law  J.  July  30,  1S90,  p.  SS8. 
See  In  re  Knoedler's  Estate  (1S93)  140  N.  Y.  379,  35  N.  E.  601;  In  re 
Ullmann,  137  N.  Y.  403,  33  N.  E.  4S0. 
(214) 


Ch.   5]  APPRAISER    AND    APPRAISEMENT.  §   51 

all  the  facts  before  the  surrogate.  The  report  is  not  final. 
It  is  to  aid  the  surrogate  to  decide  what  property  is  liable 
to  the  tax,  and  it  is  subject  to  the  confirmation,  revision,  or 
rejection  by  the  surrogate.  The  facts  in  this  case  ascer- 
tained by  the  appraiser,  and  undisputed,  show  that  the  leg- 
acies in  question  passed  to  a  person  not  exempted.  On 
those  facts  the  surrogate  construes  the  will."  Where  it  ap- 
pears from  decedent's  will  that  the  intention  was  that  the 
legatees  should  take  per  capita,  and  not  per  stirpes,  and 
the  appraiser  makes  a  miscalculation  of  values  by  report- 
ing that  the  legatees  take  per  stirpes,  the  matter  will  be 
remitted  to  him  for  correction  and  further  report.54 

By  express  provision  of  the  statutes  of  New  York  55  and 
Illinois,56  and  by  that  of  Pennsylvania,57  an  appraiser  may 
be  appointed  as  often  as,  and  whenever,  occasion  may  re- 
quire; but  it  seems  that  where  an  appraiser  is  appointed, 
and  other  interests  accrue  after  his  appointment,  but  be- 
fore his  report  is  filed,  he  has  power  to  appraise  such  inter- 
ests, and  to  report  them  for  taxation.58  And  when  prop- 
erty has  been  omitted,  by  mistake,  fraud,  or  concealment, 
from  the  first  appraisement,  another  will  be  allowed.59 

Under  a  recent  statute  60  passed  in  New  York,  in  cases 
of  this  character,  where  there  has  been  an  assessment  be- 
fore the  surrogate,  another  assessment  may  be  allowed  by  a 
justice  of  the  supreme  court,  upon  the  application  of  the 

s*  In  re  Dreyer,  N.  Y.  Law  J.  Feb.  17,  1S92. 

ss  Appendix,  I.  a,  e,  Laws  1SS7,  §  13;  Laws  1S92,  c.  399,  §  11. 

66  Appendix,  X.,  §  11. 

5  7  Appendix,  III.,  §  12. 

es  in  re  Stewart  (Surr.)  10  N.  Y.  Supp.  15;  Id.,  131  N.  Y.  274,  30  N. 
E.  1S4. 

ss  Com.  v.  Freedley,  21  Pa.  St.  36;  In  re  Astor,  supra;  In  re 
Smith's  Estate  (Surr.;  1893)  23  N.  Y.  Supp.  762,  distinguishing  In  re 
Wolfe,  137  N.  Y.  205,  33  N.  E.  156. 

so  Laws  1895,  c.  556,  amending  section  13,  Laws  1892,  c.  399.  See 
Appendix,  I. 

(215) 


§    52  APPRAISER    AND    APPRAISEMENT.  [Ch.   5 

state  comptroller,  within  two  years  from  the  first  assess- 
ment. 

The  appraiser  should  report  vested,  though  defeasible,  in- 
terests, and  so  much  of  the  residuary  estate  as  was  ascer- 
tainable at  the  time  of  the  appraisement.  Should  the  re- 
siduary estate  be  increased  by  the  receipt  of  additional  as- 
sets, or  by  other  defeasible  interests  falling  into  and  becom- 
ing a  part  of  the  same,  another  appraisement  may  then  be 
had.61 

§  52.     Land  and  Personal  Estate,  and  Where 
Appraised — "Fair  Market  Value." 

The  fact  that  these  statutes  require  the  property  to  be  ap- 
praised, in  order  to  fix  the  amount  of  the  tax,  does  not  make 
the  tax  imposed  upon  the  appraised  value  unconstitutional, 
as  a  property  tax,  because  it  is  the  privilege  of  taking  by 
will  or  descent  which  is  taxed,  and  the  appraisement  is 
merely  a  means  of  ascertaining  the  value  of  such  privilege.62 
Under  the  Pennsylvania  statute,  the  appraisement  and  pro- 
ceedings thereunder  must  be  had  in  the  county  where  the 
letters  testamentary  and  of  administration  have  been  is- 
sued, but  the  appraiser  may  legally  appraise  land  situate 
in  other  counties.63  In  Maryland  the  statute 6*  provides 
for  the  appointment  of  two  appraisers  where  there  is  land 
in  different  counties.  But,  where  there  are  several  tracts 
of  land  to  be  valued,  they  should  be  valued  separately,  as 
occupied  by  the  tenants; 65  and  the  appraisement  is  made, 

6i  In  re  Stanford  (May  6,  1898)  9  N.  Y.  Law  J.  p.  327. 

ea  Wallace  v.  Myers,  38  Fed.  1S4;  In  re  McPherson,  104  N.  Y.  306, 
10  N.  E.  6S5;  In  re  Swift,  137  N.  Y.  77,  32  N.  E.  1096.  See  chapter 
2,  §  8. 

es  stinger  v.  Com.,  26  Pa.  St.  429,  431. 

6  4  Appendix,  VIII.,  §  108. 

6  5  in  re  McKean's  Estate,  29  Pa.  Law  J.  (N.  S.)  299. 
(216) 


Oh.  5]  APPRAISER    AND    APPRAISEMENT.  §    52 

as  we  have  seen,  in  the  same  manner  as  land  is  assessed 
for  general  taxation  purposes.66 

In  New  York  67  the  appraiser  appointed  by  the  surrogate 
first  acquiring  jurisdiction  may  appraise  real  estate  in  bulk, 
though  it  be  situate  in  different  counties.68  In  ascertaining 
the  value  of  property,  the  appraiser  is  not  bound  by  a  valu- 
ation fixed  upon  by  a  general  appraisement  for  the  purpose 
of  filing  an  inventory,  where  the  state  was  not  a  party  to 
the  proceeding.69 

But  it  seems  that  if  the  property  has  no  salable  value,  nor 
any  actual  or  potential  annual  value,  at  the  time  when  the 
succession  accrues,  it  is  not  capable  of  being  assessed,70 
and  neither  possible  increase  nor  diminution  in  the  value  of 
the  property  after  the  succession  accrues  is  dealt  with.71 

The  interest  of  an  infant  decedent  in  the  proceeds  of  the 
sale  of  land  in  partition  is  not  exempt  from  taxation  as  real 
estate  under  the  act  of  1892.72 

The  existence  of  a  partition  suit  will  not  prevent  the  ap- 
praisement of  the  property  sought  to  be  partitioned,  nor 
does  the  sum  realized  upon  a  sale  in  such  suit  fix  the  value 
for  the  purpose  of  taxation  under  the  inheritance  tax.73 

Where  real  estate  passes  to  a  person  who  is  subject  to 

•«  See  cases  supra,  section  50;  In  re  McKean's  Estate,  supra;  Com. 
V.  Freedley,  21  Pa.  St.  36. 
«7  Appendix,  I.  a,  Laws  1887,  §§  15,  17. 
« a  In  re  Keenan's  Estate  (Surr.)  5  N.  Y.  Supp.  200. 

6  9  In  re  Pinckney  (Nov.  19,  1894)  12  N.  Y.  Law  J.  453. 

to  Attorney  General  v.  Earl  of  Sefton,  11  H.  L.  Cas.  257,  269. 

7i  See  post,  §  55,  and  Com.  v.  Freedley,  21  Pa.  St.  36;  Stinger  v.  Com.. 
26  Pa.  St.  425;  In  re  Miller's  Estate,  45  Leg.  Int.  175;  In  re  Bird's 
Estate  (Surr.)  11  N.  Y.  Supp.  895.  But  see  Attorney  General  v.  Dar- 
dier,  11  Q.  B.  Div.  16;  In  re  Stewart's  Estate  (Surr.)  10  N.  Y.  Supp. 
15;  Id.,  131  N.  Y.  274,  30  N.  E.  184;  In  re  Vassar,  127  N.  Y.  8,  27 
N.  E.  394;  In  re  Floyd  (March  3,  1S91)  4  N.  Y.  Law  J.  1378. 

72  Chapter  399,  §  2;   In  re  Stiger  (Suit.)  28  N.  Y.  Supp.  163. 

7  3  in  re  Lederer,  5  N.  Y.  Law  J.  957. 

(217) 


§    52  APPRAISER    AND    APPRAISEMENT.  [Ch.  5 

the  tax,  the  order  of  assessment  must  describe  the  same,  so 
that  in  issuing  receipts  the  county  treasurer  may  designate 
on  what  real  property  the  tax  has  been  paid.74 

Real  estate  which  has  once  paid  the  tax  is  not  liable  to 
taxation  again,  although  it  sold  subsequently  at  a  much 
higher  rate.75 

Where  there  is  no  evidence  as  to  the  value  of  an  asset 
(i.  e.  a  claim  upon  which  interest  has  been  paid),  it  must  be 
appraised  at  par.76 

Under  general  tax  laws,  it  has  been  held  that  dividends 
are  not  proof  of  the  earning  power  of  corporate  property, 
but  they  are  competent  evidence  upon  the  question  what  is 
the  earning  power  of  corporate  property,  which  is  a  feature 
to  be  considered  in  valuing  such  property  for  the  purposes 
of  taxation.  It  is  error  to>  base  an  assessment  of  the  prop- 
erty of  a  corporation  on  the  market  value  of  the  corporate 
stock.77 

In  New  York  the  statute  requires  the  appraiser  to  ap- 
praise the  property,  both  real  and  personal,  at  its  "fair 
market  value"  78  or  "fair  and  clear  market  value."  79  These 
phrases  would  seem  to  be  synonymous,80  and  to  require  all 
just  debts  and  liabilities  due  and  owing  by  decedent  at  the 

74  Laws  1887,  c.  713,  §  23;  Laws  1892,  c.  399,  8  16;  In  re  Jones,  7 
N.  Y.  Law  J.  578. 

75  in  re  Russell's  Estate  (1886)  19  Wkly.  Notes  Cas.  256. 
7  6  in  re  Pinckney,  12  N.  Y.  Law  J.  453. 

7  7  People  v.  Barker  (1894)  81  Hun,  25,  30  N.  Y.  Supp.  586.  See  Id. 
(Sup.)  32  N.  Y.  Supp.  990,  citing  Union  Trust  Co.  Case,  126  N.  Y. 
433,  27  N.  E.  818. 

7  8  See  Appendix,  I.  a,  e,  Laws  1887,  c.  713,  §  13;  Laws  1892,  c. 
399,  §§  11,  12. 

79  Laws  1887,  c.  713,  §  2;   Laws  1892,  c.  399,  §  11. 

so  In  re  Astor,  6  Dem.  Sur.  411;  In  re  Leavitt's  Estate  (Surr.)  4  N. 
Y.  Supp.  179;  In  re  Bird's  Estate  (Surr.)  11  N.  Y.  Supp.  895.  See  In 
re  Cooper's  Estate,  127  Pa.  St.  440,  17  Atl.  1094;  Com.  v.  Freedley, 
21  Pa.  St.  33.    In  Connecticut  it  is  "the  actual  value"  or  "actual  mar- 

(218) 


Ch.   5]  APPRAISER    AND    APPRAISEMENT.  §    52 

time  of  his  death  to  be  deducted  from  the  market  value  of 
the  estate.81 

The  appraiser  should  not  deduct  a  mortgage  upon  for- 
eign real  estate  belonging  to  decedent,  it  appearing  that 
the  land  was  worth  above  the  face  of  the  mortgage.82 

The  court  said: 

"The  executors  claim  that  being  responsible  for  the 
amount  of  the  mortgage,  as  a  debt  of  the  testator,  there 
should  be  a  deduction  from  the  amount  of  the  estate  of  one- 
half  of  his  debt,  and  claim  that  there  is  no  provision  of  stat- 
ute in  New  Jersey  similar  to  that  in  this  state,  which  char- 
ges the  heir  or  devisee  with  the  burden  of  the  mortgage. 
It  is  elementary  that,  where  a  person  claims  under  a  for- 
eign law,  that  foreign  law  must  be  established  by  compe- 
tent evidence,  as  any  other  fact,  and  in  the  absence  of  proof 
the  court  is  bound  to  presume  that  the  law  is  the  same  as 
prevails  in  this  state.  There  was  no  proof  before  the  ap- 
praiser as  to  the  law  of  the  state  of  New  Jersey.  In  this 
state  the  mortgagee  must  exhaust  his  remedy  against  the 
realty,  and,  so  far  as  the  personalty  is  concerned,  it  is  exon- 
erated from  the  payment  of  the  mortgage  debt.  But,  even 
if  the  law  were  established  as  claimed,  the  surrogate  would 
certainly  require  proof  that  the  property  would  not  be  suf- 
ficient to  pay  the  amount  of  the  mortgage  debt 

"The  proof  as  above  stated   would  negative  such  a  prop- 

ket  value."  Laws  Conn.,  Appendix,  VII.,  §§  2,  12.  In  Maryland  it 
is  tbe  "clear  value,"  "appraised  value,"  "true  value."  Laws  Md.. 
Appendix,  VIII.  a,  §§  102,  104,  112. 

si  Orcutt's  Appeal,  97  Pa.  St.  175;  Avery's  Estate,  34  Pa.  St.  204; 
Strode  v.  Corn.,  52  Pa.  St.  181;  Rubincam's  Estate,  38  Leg.  Int.  261; 
Kaas'  Estate,  45  Leg.  Int.  217;  Cullen's  Estate,  26  Wkly.  Notes  Cas. 
216;  Com.  v.  Coleman,  52  Pa.  St.  473;  Cooper's  Estate,  127  Pa.  St. 
435,  17  Atl.  1096;  In  re  Enston's  Will,  113  N.  Y.  181,  21  N.  E.  87. 
See  Mellon's  Appeal,  114  Pa,  St.  569,  8  Atl.  183;  Williamson's  Estate, 
49  Leg.  Int.  106. 

«2  in  re  Colhoun,  7  N.  Y.  Law  J.  505. 

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§    52  APPRAISER    AND    APPRAISEMENT.  [Ch.   5 

osition,  *  *  *  the  property  being  worth  more  than  the 
amount  of  the  mortgage.  The  appraiser's  report  is  con- 
firmed." 83 

Under  the  New  York  statutes  84  providing  that  an  heir 
or  devisee  shall,  out  of  his  own  property,  satisfy  any  mort- 
gage to  which  the  land  descended  or  devised  is  subject  un- 
less the  will  directs  otherwise,  the  personal  estate  of  a  tes- 
tator who  devised  land  subject  to  mortgage  is  not  liable  for 
the  mortgage  debt,  to  the  exoneration  of  the  land,  unless 
the  will  so  provides;  and  the  amount  of  the  mortgage  will 
therefore  be  deducted  from  the  value  of  the  land,  in  assess- 
ing the  transfer  tax.85 

While,  in  New  York,  it  has  been  customary  for  appraisers, 
under  these  acts,  to  do  so,  there  is  nothing  in  the  language 
of  the  statutes  expressly  authorizing  the  appraiser,  in  his 
report,  to  deduct  from  the  value  of  the  taxable  estate  of  a 
decedent  any  debts  of  decedent,  expenses  of  administration, 
funeral  expenses,  or  commissions  of  executors.  It  is  held, 
under  the  act  of  1892,  and  prior  acts,  that  the  appraiser 
has  no  power  to  deduct  these  items.86 

That  which  is  to  be  reported  by  the  appraiser  for  the  pur- 
pose of  the  tax  is  the  value  of  the  interest  passing  to  the 
legatee  under  the  will,  without  any  deduction  for  any  pur- 
pose, or  under  any  testamentary  direction.87 

Neither  is  such  power  apparently  conferred  upon  the  sur- 
rogate.    In  Re  Mill  ward  88  the  surrogate  said:     "It  can- 

8  3  Followed  in  Re  Russak,  10  N.  Y.  Law  J.  530. 

84  1  Rev.  St.  p.  749,  §  4. 

8  5  in  re  Kene  (Suit.)  29  N.  Y.  Supp.  1078. 

se  in  re  Millward's  Estate  (Surr.;  1894)  27  N.  Y.  Supp.  2S6;  citing 
In  re  Swift,  137  N.  Y.  77,  32  N.  E.  1096.  See,  also,  on  this  point,  Id., 
16  N.  Y.  Supp.  193,  per  Ransom,  S.,  affirmed  19  N.  Y.  Supp.  292; 
In  re  Ludlow's  Estate  (1893)  4  Misc.  Rep.  594,  25  N.  Y.  Supp.  989. 
But,  contra,  In  re  Gould  (1895)  13  N.  Y.  Law  J.  7S1. 

8  7  in  re  Swift,  supra. 

8  8  id. 

(220) 


Ch.   5]  APPRAISER    AND    APPRAISEMENT.  §    52 

not  be  discovered  that  the  act  anywhere  expressly  author- 
izes the  surrogate  to  deduct  from  the  appraised  value  any 
debts,  funeral  expenses,  commissions  of  executors,  or  ex- 
penses of  administration;  and  it  is  therefore  fairly  ques- 
tionable whether  the  legatees  do  not  take  cum  onere,  as  the 
tax  is  not  put  upon  what  the  legatee  may  get,  but  upon  the 
value  of  the  estate  at  the  point  or  period  of  the  transfer, 
which  is  the  death  of  the  testator."  89  The  court  held  that 
it  might  fairly  be  inferred  that  the  legislature  intended  that 
debts  owing  by  decedent  should  be  deducted  from  the  value 
of  the  estate,  and  this  could  be  done  by  the  surrogate  on 
appeal  from  the  appraisers'  report.90  A  contrary  view  of 
this  question  has  been  recently  taken  by  the  surrogate  in 
New  York  county.91  The  appraiser  should  reduce  the  value 
of  the  personal  estate  by  the  amount  of  any  taxes  or  assess- 
.ments  due  at  decedent's  death.92 

An  appraiser  cannot  deduct  from  the  personalty  the 
amount  of  a  mortgage  upon  real  estate  belonging  to  dece- 
dent situate  in  another  state,  where  the  law  of  that  state  is 
not  proved,  and  where  it  appears  that  the  property  is  worth 
more  than  the  amount  secured  by  the  mortgage.93 

Regarding  the  commissions  of  executors,  and  expenses  of 
administration,  they  accrue  and  only  become  chargeable,  in 
New  York,  upon  the  final  accounting  of  the  executors.94 
They  are  not,  therefore,  it  would  seem,  debts  of  decedent 
existing  at  death,  when,  except  in  cases  of  future  or  con- 
tingent estates,  the  tax  generally  becomes  due. 

It  is  therefore  questionable  whether  such  items  can  be 

so  See  In  re  Vassar,  127  N.  Y.  8,  27  N.  E.  394. 
so  in  re  Millward  and  In  re  Ludlow,  supra. 
9i  In  re  Gould,  supra. 

92  in  re  Pinckney,  12  N.  Y.  Law  J.  453. 

93  in  re  Colhoun,  7  N.  Y.  Law  J.  505.  In  re  Russak,  10  N.  Y.  Law 
J.  530. 

94  Bliss'  Code  N.  Y.  (4tn  Ed.)  §  2730,  and  cases  cited. 

(221) 


§    52  APPRAISER    AND    APPRAISEMENT.  [Ch.  5 

deducted  by  the  appraiser,  or  allowed  by  the  surrogate,  at 
least  until  there  has  been  a  final  accounting,  because  only 
then  can  they  be  legally  and  definitely  ascertained.  It  has 
therefore  been  the  practice,  under  the  New  York  statutes, 
to  leave  these  items  for  determination  to  the  final  account, 
when,  if  necessary,  another  appraisement  can  be  had.95 

It  seems  that  the  amount  in  value  of  the  estate  or  prop- 
erty to  be  taxed  should  be  fixed  with  mathematical  certain- 
ty, and  not  by  mere  estimate  or  approximation.  This  is 
easily  done  on  general  or  specific  legacies,  but  on  those  em- 
braced in  a  residuary  clause  such  amount  subject  to  the 
tax,  if  any,  cannot  be  fixed  until  an  accounting  shall  have 
been  had,  if  debts,  funeral  expenses,  commissions  of  execu- 
tors, and  expenses  of  administration  are  to  be  deducted.96 

Whether  such  items  are  legally  deductible  from  the  tax- 
able estate  in  any  event  is  a  question  which  does  not  seem 
to  have  been  determined  under  the  New  York  statutes. 
They  have  been  held  deductible,  however,  in  a  recent  case  97 
in  the  county  of  New  York.  It  has  been  held,  however, 
that  the  claim  of  the  state  for  taxes  due  at  death  cannot 
be  postponed  until  final  accounting  of  the  executors.98 

In  Pennsylvania  the  tax  accrues  at  decedent's  death,  un- 
less enjoyment  is  postponed  by  a  life  estate  in  another,  and 
except,  in  case  of  such  postponed  enjoyment,  the  value  at 
the  time  of  the  testator's  or  grantor's  death  is  the  basis 
for  calculating  the  amount  of  the  tax.99 

The  tax  is  to  be  assessed  upon  the  clear  value  of  the  prop- 

9  5  in  re  Havens,  3  N.  Y.  Law  J.,  Aug.  1,  1890,  p.  900;  In  re  Meyer, 
5  N.  Y.  Law  J.  May  26,  1S91.  p.  532;  In  re  Hope,  8  N.  Y.  Law  J. 
1164;  In  re  Sidell,  1  N.  Y.  Law  J.  March  18,  1893;  In  re  Mill  ward, 
supra.     Contra,  In  re  Gould  (June  18,  1895)  13  N.  Y.  Law  J.  781. 

»6  in  re  Millward,  supra. 

»7  in  re  Gould,  supra. 

ss  in  re  Vassar,  127  N.  Y.  8,  27  N.  E.  394. 

»s  In  re  Lines'  Estate  (1893)  155  Pa.  St.  378,  26  Atl.  728. 
(222) 


Oil.   5]  APPRAISER    AND    APPRAISEMENT.  §   52 

erty,  and  what  that  value  may  be  can  be  ascertained  only 
by  allowing  for  all  lawful  charges.100 

The  register  or  appraiser  has  authority  to  pass  upon  the 
reasonableness  of  the  charges  of  settling  the  estate  in  or- 
der to  determine  its  value.101 

Where  the  parties  in  interest  assent  to  the  correctness  of 
an  estimate  of  the  expenses  of  settling  the  estate,  the  regis- 
ter must  accept  such  estimate,  unless  there  is  ground  for 
the  suspicion  of  fraud.102  Under  the  English  law,  in  valu- 
ing a  succession  to  lands  vested  by  will  in  trustees,  the 
cestui  que  trust  cannot  deduct,  as  "necessary  outgoings," 
reasonable  expenses  of  management  incurred,  independent- 
ly of  his  control,  by  the  trustees  under  an  authority  given 
hy  will.103 

Pollock,  C.  B.,  said: 

"It  might  be  said  that,  if  a  man  is  under  the  absolute 
necessity  of  incurring  certain  expenses  before  he  can  get 
that  which  is  bequeathed  to  him,  he  ought  to  be  allowed  the 
deduction  in  respect  of  them.  But  *  *  *  the  crown 
ought  not  to  receive  less  because  a  particular  individual 
receives  more.  If  one  man  has  left  him  £100  a  year, — the 
rent  of  a  house,  for  example,  which  he  can  collect  in  the 
next  street, — he  pays  upon  that  £100  a  year.  If  instead  of 
the  rent  being  capable  of  collection  in  the  next  street,  it  is 
to  be  collected  a  hundred  miles  off,  *  *  *  no  deduction 
can  be  made  from  the  value  of  the  succession. 

"The  duty  depends  upon  the  value  of  the  property,  not 
with  respect  to  the  expenses  *  *  *  in  the  collection, 
but  with  respect  to  the  property  itself." 

In    Commonwealth's    Appeal 104    the    question    arose    in 

100  in  re  Cullen's  Estate  (1891)  142  Pa.  St.  IS,  21  Atl.  781. 
ioi  in  re  Cullen's  Estate,  supra. 

102  in  re  Cullen's  Estate,  8  Pa.  Co.  Ct.  R.  234. 

103  in  re  Earl  Cowley,  L.  R.  1  Exch.  288. 

104  In  re  Cooper's  Estate,  127  Pa.  St.  435,  17  Atl.  1094. 

(223) 


§    53  APPRAISER    AND    APPRAISEMENT.  [Cll.   5 

Pennsylvania  as  to  the  meaning  of  words  requiring  the  tax 
to  be  imposed  "on  the  clear  value  of  such  estates."  The 
court  said:  "The  appraiser  was  of  the  opinion  that  be- 
cause the  real  estate  descended  intact  to  the  collateral  heirs 
the  tax  must  be  assessed  upon  the  valuation  of  the  real  es- 
tate without  abatement  of  the  debts  owing  by  the  decedent 
at  the  time  of  his  death.  This,  however,  would  exclude  any 
room  for  the  application  of  'clear  value,'  and  is  inconsistent 
with  the  legislative  intent  in  imposing  the  tax.  This  tax 
at  first  became  a  lien  due  upon  the  death  of  the  decedent. 
His  debts  were  then  a  lien  against  his  real  estate,  and  the . 
law  authorized  the  land  to  be  sold,  if  necessary,  for  their 
payment.  The  surplus  only  was  liable  to  the  tax.  It  is  to 
be  assessed  not  upon  the  pecuniary  value  of  the  land  com- 
ing to  the  tenant  in  remainder,  but  upon  the  clear  value  of 
the  estate  passing  from  the  person  who  may  die  seised 
thereof,  and  the  probable  duration  of  the  preceding  life 
estate."  105 

The  tax  is  imposed  on  what  remains  for  distribution  after 
the  expenses  of  administration,  debts,  and  rightful  claims 
of  third  parties  are  deducted.108 

§  53.     Life  Estates,  Annuities,  Legacies,  and 
Terms  of  Years.107 

Under  the  New  York  statute  of  1892,108  where  the  tax- 
able interest  shall  consist  of  an  estate,  income,  or  interest 
for  a  term  of  years,  or  for  life,  or  determinable  upon  any 
future  or  contingent  estate,  or  shall  be  a  remainder,  or  re- 

ios  See,  also,  chapter  4,  §  49. 

loe  in  re  Lines'  Estate  (1893)  155  Pa.  St.  379,  26  Atl.  72S. 

107  Constitutional  rules  considered  with  reference  to  the  valuation 
of  life  estates,  etc.,  William's  Case,  3  Bland  (Md.)  186,  227. 

los  See,  also,  Laws  1887,  c.  713,  §§  2,  13.     And  see  In  re  Robertson, 
5  Dem.  Sur.  92;   Appendix,  I.  e,  Laws  1892,  c.  399,  §  11  et  seq. 
(224) 


Ch.  5]  APPRAISER    AND    APPRAISEMENT.  §    53 

version,  or  other  expectancy,  real  or  personal,  the  entire 
property  or  fund  by  which  such  estate,  income,  or  interest 
is  supported,  or  of  which  it  is  a  part,  shall  be  appraised  im- 
mediately after  such  transfer,  or  as  soon  thereafter  as  may 
be  practicable,  at  the  fair  and  clear  market  value  thereof  at 
that  time;  provided,  however,  that  when  such  estate,  in- 
come, or  interest  shall  be  of  such  a  nature  that  its  fair  and 
clear  market  value  cannot  be  ascertained  at  such  time,  it 
shall  be  appraised  in  like  manner  at  the  time  when  such 
value  first  became  ascertainable.  The  value  of  every  future 
or  contingent  or  limited  estate,  income,  interest,  or  annuity 
dependent  upon  any  life  or  lives  in  being  shall  be  deter- 
mined by  the  rule,  method,  and  standard  of  mortality  and 
value  employed  by  the  superintendent  of  insurance  in  as- 
certaining the  value  of  policies  of  life  insurance  and  annu- 
ities, for  the  determination  of  liabilities  of  life  insurance 
companies,  except  that  the  rate  of  interest  for  computing 
the  present  value  of  all  future  and  contingent  interests  or 
estates  shall  be  5  per  centum  per  annum. 

The  superintendent  of  insurance  109  shall,  on  the  applica- 
tion of  any  surrogate,  determine  the  value  of  any  such  fu- 
ture or  contingent  estates,  income,  or  interest,  limited,  con- 
tingent, dependent,  or  determinable  upon  the  life  or  lives 
of  persons  in  being,  upon  the  facts  contained  in  any  such 
appraiser's  report,  and  certify  the  same  to  the  surrogate; 
and  his  certificate  shall  be  conclusive  evidence  that  the 
method  of  computation  adopted  therein  is  correct.  The 
state  is  thus  afforded  a  standard  and  uniform  method  un- 
der this  statute  of  appraising  estates  liable  to  taxation. 

In  Connecticut110  the  value  of  annuities  and  life  estates 
is  to  be  determined  by  the  actuaries'  combined  experience 
tables,  and  5  per  centum  compound  interest. 

109  Laws  1892,  c.  399,  §  13.  no  Appendix,  VII.,  §  12. 

LAW  INHER. 15  (225) 


§    53  APPRAISER    AND    APPRAISEMENT.  [Ch.   5 

The  Massachusetts  statute111  provides  that  the  present 
worth  of  a  remainder  must  be  ascertained  by  deducting  the 
value  of  the  life  estate  from  the  appraised  value  of  the  prop- 
erty, and  that  the  value  of  the  life  estate  is  to  be  deter- 
mined by  actuaries'  tables. 

Under  these  provisions,  where  a  wife  left  to  her  husband 
a  life  estate  in  $10,000,  not  taxable,  at  his  death  to  go  to  E., 
the  tax  upon  the  remainder  must  be  computed,  and  deduct- 
ed from  the  principal  sum;  and  although  the  tenant  for 
life  will  have  lost  the  income  on  the  amount  so  deducted, 
such  a  loss  must  be  borne  by  him  as  legatee  in  remainder, 
and  will  be  held  to  have  been  so  intended.112 

In  Maryland,113  where  there  are  annuities,  life  estates,  or 
remainders  liable  to  the  tax,  the  orphans'  court  is  given 
power  to  determine,  in  its  discretion,  at  such  time  as  it 
thinks  proper,  the  proportion  of  the  tax  a  party  shall  pay; 
and  its  judgment  is  final  and  conclusive,  but  it  would  seem 
that  this  means  only  as  to  the  valuation,  and  not  as  to  any 
question  of  liability  to  the  tax.114 

In  Pennsylvania115  the  appraisement  of  life  estates,  an- 
nuities, and  terms  of  years  is  made  by  the  official  appraiser 
appointed  by  the  register  of  wills,  and  he  is  required  to 
make  a  fair  and  conscionable  appraisement  of  such  es- 
tates.116 

But  no  system  or  rule  for  the  purpose  of  ascertaining  the 

in  Appendix,  IV.,  Laws  1891,  c.  425,  §§  2,  13. 

112  Minot  v.  Winthrop  (1894)  162  Mass.  113,  38  N.  E.  512. 

us  Appendix,  VHT.,  §  115. 

H4  Tyson  v.  State,  28  Md.  577. 

us  Statute,  Appendix,  III.,  §  12.  Appraiser's  duties  denned  with  ref- 
erence to  life  estates  and  annuities,  In  re  Kaas'  Estate,  45  Leg.  Int. 
217. 

us  In  re  Wharton's  Estate,  10  Wkly.  Notes  Cas.  106;   In  re  Gold- 
stein's Estate,   16   Phila.    319;    In   re  Kaas'   Estate,   supra;    In  re 
Cooper's  Estate,  127  Pa.  St.  435,  17  Atl.  1094. 
(226) 


Ch.  5]  APPRAISER    AND    APPRAISEMENT.  §   53 

value  of  such,  estates  exists  in  that  state,  and  the  question 
seems  to  be  left  entirely  to  the  discretion  of  the  register 
of  wills.  Generally,  however,  the  Carlisle  tables  are  adopt- 
ed as  the  basis  of  valuation.117 

Where  testatrix  bequeathed  a  specific  sum  in  trust  to 
invest,  and,  after  deducting  all  proper  costs  and  charges 
thereon,  to  pay  the  interest  and  income  thereof  to  her  niece 
for  life,  such  a  bequest  presupposes  a  deduction  of  the  ex- 
penses of  the  trust,  the  commissions  of  the  trustees,  and 
other  charges  which  may  lawfully  be  incurred;  thus  dimin- 
ishing the  amount  to  be  paid  the  cestui  que"  trust  annually. 
These  expenses  are  to  be  considered  upon  testimony  to  be 
submitted  to  the  appraiser  by  the  executor  or  life  tenant  in 
arriving  at  a  fair  and  conscionable  appraisement  of  the  cash 
value  of  the  annuity,  and  it  is  then  for  the  appraiser  to 
determine  the  probable  net  income  of  the  bequest  that  the 
tax  may  be  imposed  thereon; 11S  and  though,  by  the  terms 
of  the  will,  it  may  become  necessary  to  deplete  the  principal 
of  the  fund,  to  pay  life  annuities,  making  it  impossible  to 
determine  the  present  cash  value  of  the  annuities,  that  fact 
is  immaterial  as  regards  the  question  of  appraisement,  as 
the  property  is  to  be  taken  at  its  "clear  market  value"  at 
the  testator's  death.119 

Where  an  estate  for  life  is  left  to  husband  and  wife  as 
tenants  by  the  entirety,  and  the  wife  is  not  exempt  by  stat- 
ute, her  interest,  being  certain  and  definite,  and  made  as- 
signable by  law,  and  subject  to  partition,120  is  liable  to  as- 

117  In  re  Goldstein's  Estate,  16  Phila.  319;  In  re  Kaas'  Estate,  45 
Leg.  Int.  217. 

us  in  re  Kaas'  Estate,  and  cases  cited,  supra. 

us  In  re  Leavitt's  Estate  (Surr.)  4  N.  Y.  Supp.  179;  In  re  John- 
eon,  6  Dem.  Sur.  146;  In  re  Bird's  Estate  (Surr.)  11  N.  Y.  Supp.  895; 
In  re  Vassar,  127  N.  Y.  8,  27  N.  E.  394.  But  see  In  re  Clark's  Estate 
<Surr.)  5  N.  Y.  Supp.  199. 

120  Laws  N.  Y.  18S0,  c.  472. 

(227) 


§    53  APPRAISER    AND    APPRAISEMENT.  [Ch.   5 

sessment  and  taxation  during  the  lifetime  of  the  hus- 
band.121 

Where  there  are  contingent  annuities,122  an  appraisement 
thereof  was  formerly  allowed  upon  decedent's  death,123  if 
the  value  of  such  annuities  could  then  be  ascertained;  but 
now,  under  recent  decisions,  they  can  only  be  appraised  and 
taxed  when  the  contingency  occurs,  and  they  vest  in  posses- 
sion or  enjoyment.124 

So  the  value  of  a  bequest  to  testator's  widow,  for  life,  or 
until  she  marries  again,  cannot  be  determined,  for  the  pur- 
pose of  taxation  under  the  transfer  tax  law,  until  the  ter- 
mination of  the  widow's  estate  by  death  or  marriage. 

"While,"  said  the  court,  "we  have  an  established  method 
for  ascertaining  the  value  of  the  life  estate  of  a  widow, 
based  upon  an  arbitrary  rule  as  to  probable  time  of  death, 
there  is  lacking  any  such  rule  to  enable  us  to  approximate 
the  period  when,  if  at  all,  she  may  remarry.  That  defies  all 
calculation.  Hence  the  value  of  her  estate,  or  of  the  re- 
mainder, cannot  now  be  ascertained,  for  the  purpose  of  the 
assessment  of  the  tax."  125 

Under  the  New  York  statutes  128  in  existence  prior  to  the 

.  121  In  re  Higgins'  Estate,  36  N.  Y.  Daily  Reg.  906,  distinguishing 
In  re  Le  Fever,  5  Dem.  Sur.  184;  In  re  Hopkins,  6  Dern.  Sur.  1.  But  see 
O'Connor  v.  McMahon,  54  Hun,  66,  7  N.  Y.  Supp.  225.  See,  also,  as  to 
tenants  by  the  entirety,  Stelz  v.  Schreck  (Sup.)  10  N.  Y.  Supp.  790; 
Beach  v.  Hollister,  3  Hun,  519. 

122  See  section  54,  subd.  d,  post. 

123  in  re  Clark's  Estate  (Suit.)  5  N.  Y.  Supp.  199. 

12*  See  In  re  Stewart,  131  N.  Y.  274,  30  N.  E.  184;  In  re  Benjamin, 
N.  Y.  Daily  Reg.  Dec.  7,  1889,  p.  906;  In  re  Le  Fever,  5  Dem.  Sur. 
184;  In  re  Hopkins,  6  Dem.  Sur.  1.  See  chapter  6,  §  58,  subds.  c,  b.; 
In  re  Cager,  111  N.  Y.  343,  18  N.  E.  S66.  See  In  re  Curtis,  142  N. 
Y.  219,  36  N.  E.  887;  In  re  Roosevelt's  Estate,  143  N.  Y.  120,  38  N. 
E.  281;  In  re  Hoffman's  Estate,  143  N.  Y.  330,  38  N.  E.  311;  Tal- 
madge  v.  Seaman,  85  Hun,  242,  32  N.  Y.  Supp.  906,  reversed  as  In 
re  Seaman  (Oct.  8,  1895;  Ct.  App.)  41  N.  E.  401. 

125  Coffin,  S.,  In  re  Millward  (Suit.;  1894)  27  N.  Y.  Supp.  288. 

126  Appendix,  I.  a,  Laws  1887,  c.  713. 
(228) 


Ch.   5]  APPRAISER    AND    APPRAISEMENT.  §    53 

act  of  1892,  a  legacy  which  might  be  valued  at  less  than 
$500  was  exempt,  the  word  "estate,"  in  the  acts,  being  held 
to  mean  the  property  passing  to  the  legatee,  and  not  the 
estate  of  the  testator.127  Under  this  clause  of  the  statute 
of  1887,  it  was  held  that  a  cash  legacy  of  |500,  which  is 
not  legally  payable  until  a  year  after  decedent's  death,  is 
appraisable  and  taxable  at  its  full  value,  notwithstanding 
the  executor  has  a  year  in  which  to  pay  it.128 

In  holding  that  this  fact  did  not  prevent  the  assessment 
and  taxation  of  such  legacy,  at  its  full  value  at  the  time  of 
death,  Surrogate  Ransom129  said:  "Thus  we  have  seen 
that  the  legislature  plainly  distinguished  between  a  mon- 
eyed legacy  and  one  of  other  property,  and  find  authority 
for  the  construction  which  has  been  given  to  this  act  by  me 
in  several  cases  heretofore, — that  a  moneyed  legacy  need 
not  be  appraised.  In  fact,  the  meaning  of  the  act  itself  is 
an  appraisement  by  the  legislature  of  a  moneyed  legacy  at 
its  face  value  at  the  date  of  decedent's  death.  Legacies  of 
property,  not  in  money,  are  to  be  appraised  at  their  fair, 
clear  market  value  as  of  the  date  of  decedent's  death,  not 
as  of  one  year  thereafter,  when  the  legacy  is  payable  and 
its  delivery  may  be  enforced.  It  is  said  that  the  fair,  clear, 
market  value  of  the  property  subject  to  the  tax  is  what  it 
will  be  worth  when  the  legatee  is  entitled  to  receive  it  and 
may  compel  its  delivery  to  him.     This  construction  of  the 

127  in  re  Cager's  Will,  supra;  In  re  Howe,  112  N.  Y.  100,  19  N.  E. 
513;  In  re  Sherwell's  Estate,  125  N.  Y.  376,  26  N.  E.  464;  In  re 
Sterling's  Estate  (Surr.)  30  N.  Y.  Supp.  386.  The  words  "estate" 
and  "property,"  under  the  acts  of  1892,  now  refer  to  the  aggregate  es- 
tate of  the  decedent,  and  not  to  the  share  of  the  legatee.  In  re  Hoff- 
man's Estate,  143  N.  Y.  330,  38  N.  E.  311;  In  re  Hall,  34  N.  Y.  Supp. 
616:   chapter  3,  §  41. 

128  in  re  Pond,  N.  Y.  Daily  Reg.  May  25,  18S9;  In  re  Bird's  Estate 
(Surr.)  11  N.  Y.  Supp.  895;  In  re  McGowan's  Estate,  3  N.  Y.  Law  J. 
888.     Contra,  In  re  Peck's  Estate  (Suit.)  9  N.  Y.  Supp.  465. 

129  in  re  Bird,  supra. 

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§    53  APPRAISER    AND    APPRAISEMENT.  [Ch.  5 

act  works  its  repeal.  Moreover,  it  is  contrary  to  its  very 
letter.  The  soundness  of  this  proposition  is  shown  by  a 
consideration  of  the  rights  of  parties  in  case  of  property 
other  than  money,  which  had  appreciated  in  value  since  de- 
cedent's death;  for  instance,  stocks."  The  rule  that  such 
$500  legacies  are  taxable  at  their  face  value  is  now  settled 
under  the  act  of  1887.130 

In  Pennsylvania,  as  we  have  already  seen,  an  "estate"  of 
less  than  |250  is  exempt,131  but  under  this  provision  of  the 
statute,  where  the  aggregate  estate  of  the  testator  exceeds 
$250,  and  there  are  legacies  of  less  than  that  amount,  they 
are  appraisable  and  taxable,132  upon  the  theory  that  the 
word  "estate"  refers  to  the  general  property  of  the  decedent, 
and  not  to  the  interest  of  the  legatee,  a  result  which  was 
contrary  to  the  construction  placed  upon  a  similar  clause  in 
the  New  York  statute  of  1887,133  but  now,  under  the  New 
York  act  of  1892,134  it  is  held  that  the  words  "estate"  and 
"property,"  used  in  the  act,  refer  to  the  general  estate  of  the 
testator,  and  not  to  specific  legacies  or  shares;  and  where 
the  devise  is  to  lineal  heirs,  and  the  estate  is  over  $10,000 
in  value,  and  personalty,  it  is  taxable,  whether  the  share  of 
the  legatee  is  more  or  less.135  The  same  rule  is  applied 
where  the  legacy  is  to  collateral  heirs,  and  the  estate  of  de- 
cedent is  of  the  value  of  $500  or  more;  the  share  of  the 
legatee  is  taxable  though  of  less  value  than  the  sum  of 


As  a  general  rule,  legacies  given  in  payment  for  services 

i3o  in  re  Sherwell's  Estate,  125  N.  Y.  376,  26  N.  E.  464. 

isi  Chapter  3,  §  41. 

132  Com.  v.  Boyle,  2  Del.  Co.  Rep.  335. 

183  Chapter  3  §  41. 

184  Appendix,  I. 

is 5  in  re  Hoffman's  Estate,  143  N.  Y.  327,  38  N.  E.  311. 
ise  Laws  1892,  c.  399,  §  22;  In  re  Ludlow's  Estate  (Surr.)  25  N.  Y. 
Supp.  989. 
(230) 


Ch.    5]  APPRAISER    AND    APPRAISEMENT.  §   54 

rendered,  or  for  just  debts  owing  by  the  decedent,  are  not 
appraisable,  as  they  are  not  liable  to  taxation.137  The  fact 
that  a  legacy  has  not  been  paid,  or  its  payment  demanded, 
by  the  legatee,  does  not  prevent  its  appraisement  where 
there  is  no  proof  that  the  legacy  has  been  renounced.138 

§  54.     Remainders,  Contingent,  and  Future 
Estates. 

(a)  Under  Acts  of  Congress. 

Under  the  acts  of  congress  in  force  until  1870,  the  right 
to  appraise  or  tax  contingent  estates  or  remainders  did  not 
accrue  until  such  estates  vested  in  the  actual  possession  and 
enjoyment  of  the  tenant  in  remainder.139 

(b)  Maryland  and  Connecticut. 

By  the  Maryland  statute  140  the  court  having  jurisdiction 
over  the  collateral  inheritance  tax  is  empowered,  in  its  dis- 
cretion, and  at  such  time  as  it  shall  think  proper,  to  deter- 
mine what  proportion  the  party  entitled  to  the  contingent 
interest  shall  pay  of  the  tax,  and  its  judgment  is  to  be  final 
and  conclusive.  Such  court  is  also  empowered  to  determine, 
in  its  discretion,  from  time  to  time,  after  the  determination 
of  the  preceding  estate,  and,  as  the  remainder  of  said  estate 
shall  vest  in  the  party  entitled  in  remainder  or  reversion, 
what  proportion  of  the  residue  of  the  tax  shall  be  paid  by 
such  parties  in  whom  the  estate  shall  so  vest. 

137  in  re  Rielly's  Estate,  3  N.  Y.  Law  J.  796.  See  In  re  Doty's 
Estate  (Surr.)  27  N.  Y.  Supp.  653;  In  re  Sidell,  N.  Y.  Law  J.  March 
9,  1893;  In  re  Meyer  (May  26,  1891)  5  N.  Y.  Law  J.  532;  In  re  Hnlse 
(Surr.)  15  N.  Y.  Supp.  770;  In  re  Ludlow's  Estate  (Surr.)  25  N.  Y. 
Supp.  989;   chapter  4,  §  49;   chapter  6,  §  61. 

iss  in  re  Raymond,  12  N.  Y.  Law  J.  453. 

139  See  chapter  6,  §  58b;  Wright  v.  Blakeslee,  101  U.  S.  174;  Clapp 
v.  Mason,  94  U.  S.  589;  Mason  v.  Sargent,  104  U.  S.  6S9;  U.  S.  v. 
Hazard,  8  Fed.  380;  U.  S.  v.  Brice,  Id.  381. 

140  Appendix,  VIII.,  §  115. 

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§    54  APPRAISER    AND    APPRAISEMENT.  [Ch.   5 

The  clause  of  the  statute  which  declares  that  the  judg- 
ment of  the  orphans'  court  shall  be  final  and  conclusive  ap- 
plies only  to  the  proportion  of  the  tax  which  it  is  the  duty 
of  the  said  court  to  assess  among  the  parties  interested  iD 
the  estate.141 

In  Connecticut  the  value  of  such  contingent  interest  is  as- 
certainable by  the  actuaries'  combined  experience  tables  and 
5  per  cent,  compound  interest.142 

(c)  Pennsylvania  Statute. 

By  the  statute  of  this  state,143  now  in  force,  it  is  provided 
that  in  all  cases  where  there  has  been  or  shall  be  a  devise, 
descent,  or  bequest  to  collateral  relatives  or  strangers  liable 
to  the  collateral  inheritance  tax  to  take  effect  in  possession 
or  coming  into  the  actual  enjoyment  after  the  expiration  of 
one  or  more  life  estates  or  a  period  of  years,  the  tax  on  such 
estate  shall  not  be  payable,  or  interest  begin  to  run,  until 
the  person  or  persons  liable  for  the  same  shall  come  into 
actual  possession  of  such  estate  by  determination  of  the  es- 
tate for  life  or  years,  and  the  tax  shall  be  assessed  upon  the 
value  of  the  estate  at  the  time  the  right  of  possession  ac- 
crues to  the  owner  as  aforesaid;  provided,  that  the  owner 
shall  have  the  right  to  pay  the  tax  at  any  time  prior  to  his 
coming  into  possession,  and  in  such  cases  the  tax  shall  be 
assessed  on  the  value  of  the  estate  at  the  time  of  the  pay- 
ment of  the  tax  after  deducting  the  value  of  the  life  estate 
or  estate  for  years;  and  provided  further,  that  the  tax  on 
real  estate  shall  remain  a  lien  on  the  real  estate  upon  which 
the  same  is  chargeable  until  paid,144  and  the  owner  of  any 

141  Tyson  v.  State,  54  Md.  577. 

142  Appendix,  III.,  §  12. 

143  Laws  Pa.  1887,  Appendix,  III.,  §  3. 

144  The  clause  in  the  statute  relating  to  the  lien  has  been  declared 
unconstitutional,  or  at  least  inoperative  so  far  as  foreign  real  estate 
is  concerned.  See  In  re  Bittmger's  Estate,  129  Pa.  St.  338,  18  Atl. 
132;  also  chapter  2,  §  15.     See,  also,  as  to  lien,  chapter  8,  §  67. 

(232) 


Ch.   5]  APPRAISER    AND    APPRAISEMENT.  §   54 

personal  estates  shall  make  a  full  return  of  the  same  to  the 
register  of  wills  in  the  proper  county  within  one  year  from 
the  death  of  the  decedent,  and  within  that  time  enter  into 
security  for  the  payment  of  the  tax  to  the  satisfaction  of 
such  register;  and,  in  case  of  failure  so  to  do,  the  tax  shall 
be  immediately  payable  and  collectible. 

By  further  provision  145  it  is  made  the  duty  of  the  register 
of  wills  in  the  county  in  which  letters  testamentary  or  of 
administration  are  granted  to  appoint  an  appraiser  as  often 
as,  and  whenever,  occasion  may  require,  to  fix  the  valuation 
of  estates  which  are  or  shall  be  subject  to  collateral  inherit- 
ance tax,  and  it  shall  be  the  duty  of  such  appraiser  to  make 
a  fair  and  conscionable  appraisement  of  such  estates. 

This  statute  fails,  however,  to  provide  any  standard  for 
determining  the  value  of  contingent  interests  or  remainders, 
and,  as  under  the  old  law,  the  method  of  valuation  seems  to 
be  left  to  the  arbitrary  discretion  of  the  register  of  wills  in 
each  county.  As  we  have  seen,  the  Carlisle  tables  are  the 
guide  commonly  in  use.146 

The  portions  of  the  early  statutes  of  Pennsylvania  147  con- 
cerning estates  in  remainder,  and  the  appraisement  thereof, 
are  referred  to  in  the  notes.148  They  are  of  more  or  less 
value  in  arriving  at  an  understanding  of  the  condition  of  the 
law  of  that  state  with  reference  to  the  appraisement  and 
taxation  of  estates  in  remainder,149  because,  while  the  law 

1*5  Section  12,  Pennsylvania  Statute,  Appendix. 

1*6  Goldstein's  Estate,  16  Phila.  319;  Kaas'  Estate,  45  Leg.  Int. 
217. 

1*7  See  Del  Busto's  Estate,  23  Wkly.  Notes  Cas.  Ill,  where  these 
statutes  are  collated  and  explained,  per  Penrose,  J.;  Mellon's  Ap- 
peal, 114  Pa.  St.  572,  8  Atl.  183. 

lis  For  act  of  1826,  see  chapter  6,  §  58,  subd.  d. 

149  See  1  Purd.  Dig.  (10th  Ed.)  215,  216.  By  Laws  1849,  p.  579,  § 
13,  it  was  provided:  "Where  any  person  or  persons  shall  bequeath 
or  devise  any  estate,  real  or  personal,  to  a  father,  widow  or  other 

(233) 


§    54  APPRAISER    AND    APPRAISEMENT.  [Ch.   5 

since  the  act  of  182G  has  undergone  considerable  modifica- 
tion with  reference  to  the  taxation  of  remainders  and  con- 
tingent estates,  so  far  as  the  act  of  1887  is  concerned,  it  has 
been  expressly  adjudged  that  that  statute  is,  at  most,  but 
a  mere  codification  of  the  former  statutes  and  decisions  of 
the  supreme  court;  and,  so  far  as  it  has  been  construed,  it 
has  been  held  to  make  little,  if  any  substantial,  change  in 
the  prior  laws.  How  far  this  is  so,  as  regards  matters  re- 
lating to  the  appraisement,  remains  to  be  determined.150 

person  during  life,  and  the  remainder  over  to  collateral  heirs  at 
their  decease,  immediately  after  the  death  of  the  testator,  the  estate 
so  granted  shall  be  appraised  in  the  manner  hereinbefore  provided, 
and  after  deducting  the  valuation  of  said  life-estate  the  collateral 
inheritance  tax  on  the  remainder  shall  be  immediately  due  and  pay- 
able over  to  the  register  of  wills  of  the  proper  county,"  etc.  By 
Laws  1850,  p.  170,  §  1,  it  was  provided  that  "in  all  cases  where  there 
has  been  or  shall  be  a  devise,  descent  or  bequest  to  collateral  rela- 
tives or  strangers  liable  to  the  collateral  inheritance  tax,  to  take 
effect  in  possession  or  to  come  into  actual  enjoyment  after  the  ex- 
piration of  one  or  more  life-estates  or  period  of  years,  it  shall  and 
may  be  lawful  for  the  parties  so  liable  for  such  tax  to  elect  to  wait 
their  coming  into  the  actual  possession  of  the  estate  or  property 
subject  to  the  said  tax  and  in  such  case  shall  give  security  to  the 
register  of  the  proper  county  for  the  payment  thereof  on  the  per- 
sonal estate  at  such  period  as  they  or  their  representatives  may 
come  into  possession,  together  with  six  per  cent,  per  annum  inter- 
est on  the  amount  of  the  tax  from  the  time  the  same  accrues  until 
paid,  provided  that  such  persons  shall  make  a  full  return  of  such 
property  within  one  year  from  the  date  thereof  or  within  one  year 
from  the  death  of  the  decedent  and  within  that  period  enter  into 
such  security  to  the  satisfaction  of  the  register,"  etc.  By  Act  1855, 
p.  425,  §  1,  it  was  provided  that  "the  penalty  of  interest  shall  only 
run  from  the  time  remainderman  comes  into  possession  *  *  * 
and  if  such  legatee  or  devisee  shall  elect  to  pay  said  tax  in  anticipa- 
tion of  the  same  coming  into  actual  possession  and  enjoyment,  the 
same  shall  be  received  at  the  then  valuation  of  the  legacy  or  devise, 
deducting  the  value  of  the  life-estate  or  term  of  years." 
i5o  See  In  re  Cooper's  Estate,  127  Pa.  St.  435,  17  Atl.  1094;  In  re 
(234) 


Ch.  5]  APPRAISER    AND    APPRAISEMENT.  §    54 

The  adjudications  which,  from  time  to  time  have  been 
made  under  these  statutes,  with  reference  to  the  appraise- 
ment of  estates  in  remainder,  may  be  best  stated  in  the  fol- 
lowing order.  How  far  the  authorities  conflict,  the  writer 
does  not  pretend  to  say: 

(1)  Under  the  early  statutes  in  force  prior  to  1850,151  es- 
tates in  remainder,  contingent  or  otherwise,  were  apprais- 
able  immediately  upon  decedent's  death,  and,  after  deduct- 
ing the  value  of  the  life  estate,  the  tax  was  due  and  payable 
to  the  register  of  wills.152 

The  object  of  the  act  of  1849  was  to  give  a  mode  of  mak- 
ing the  appraisement.153 

But,  in  order  to  be  appraisable  at  decedent's  death,  the 
value  of  such  estates,  it  seems,  must  then  have  been  ascer- 
tainable; otherwise  the  register  could  make  no  appraise- 
ment of  the  estate  in  remainder.154 

The  tax  accrues  at  decedent's  death,  unless  enjoyment  is 
postponed  by  a  life  estate  in  another;  and,  except  in  such 
case,  the  value  at  the  time  of  death  is  the  basis  for  calculat- 
ing the  amount  of  the  tax.155 

Where  such  estates  were  appraisable  at  decedent's  death, 
so  that  the  tax  could  be  imposed  upon  the  ascertained  value 
of  the  estate,  the  statute  of  limitations  then  became  opera- 

Fagely's  Estate,  128  Pa.  St.  603,  18  Atl.  3S6;   In  re  Del  Busto's  Es- 
tate, 23  Wkly.  Notes  Cas.  111. 
lsi  1  Purd.  Dig.  (10th  Ed.)  215. 

152  Com.  v.  Smith,  20  Pa.  St.  100;  Com.  v.  Eckert,  53  Pa.  St.  102; 
Mellon's  Appeal,  114  Pa.  St.  570,  S  Atl.  183;  In  re  Cooper's  Estate, 
127  Pa.  St.  435,  17  Atl.  1094;  In  re  Fagely's  Estate,  128  Pa.  St. 
603,  18  Atl.  386;  In  re  Willing's  Estate,  2  Wkly.  Notes  Cas. '307; 
James'  Appeal  (1SS7)  2  Del.  Co.  Rep.  164. 

153  James'  Appeal  and  Com.  v.  Smith,  supra. 

154  See  In  re  Nieman's  Estate,  131  Pa.  St.  346,  18  Atl.  900;  Mel- 
lon's Appeal,  supra,  574;  see  In  re  Cager,  111  N.  Y.  343,  18  N.  E. 
866. 

155  In  re  Lines'  Estate  (1S93)  155  Pa.  St.  378,  26  Atl.  728. 

(235) 


§    54  APPRAISER    AND    APPRAISEMENT.  [Ch.   5 

tive  against  the  commonwealth,150  in  favor  of  purchasers 
of  real  estate  upon  which  the  tax  was  a  lien.157 

Estates  in  remainder,  or  contingent  estates,  were  like- 
wise subject  to  appraisement  and  taxation  at  the  decedent's 
death,  under  the  North  Carolina  statute.158 

In  Pennsylvania,  however,  the  taxation  of  such  estates 
before  they  vested  in  actual  possession  and  enjoyment,  and 
by  which  accrued  interest,  and  often  heavy  penalties,  in  the 
nature  of  additional  interest,  was  charged,  became  oppress- 
ive, and  was  felt  to  be  unjust,159  and  was  so  declared  in  the 
preamble  to  one  of  the  amendatory  acts.160 

(2)  As  a  result  of  this  condition  of  the  law,  two  remedial 
statutes  were  passed, — one  in  1850,161  and  the  other  in 
1855.102 

By  the  former,  tenant  in  remainder  was  given  the  election 
to  await  his  coming  into  the  possession  and  enjoyment  of 
his  estate  before  paying  the  tax,  in  which  case  he  was  to 
give  security  for  the  payment  of  the  tax  to  the  register.  It 
would  seem,  however,  that  this  statute  simply  delayed  pay- 
ment of  the  tax,  and  did  not  interfere  with  the  appraisement 
of  such  estate  on  decedent's  death. 

By  the  act  of  1S55  it  was  provided  that,  if  such  remainder- 
men elected  to  pay  the  tax  in  anticipation,  "such  tax  was 
to  be  received  at  the  then  valuation  of  the  legacy  or  devise, 
deducting  the  value  of  the  life  estate  or  term  of  years." 

We  have  referred  to  these  statutes,  in  this  connection, 
merely  in  so  far  as  they  relate  to  the  question  of  appraise- 
ment.    Now,  while  it  is  evident  that  remainder-men  were 

156  Mellon's  Appeal,  supra. 

157  James'  Appeal,  2  Del.  Co.  Rep.  164;   In  re  Cullen's  Estate,  26 
Wkly.  Notes  Cas.  216. 

158  Attorney  General  v.  Pierce,  6  Jones,  Eq.  240. 
i5»  Mellon's  Appeal,  supra. 

160  p.  L.  1850,  p.  170. 
i6i  Supra. 

162  p.  L.  1855,  p.  425. 
(236) 


Ch.   5]  APPRAISER    AND    APPRAISEMENT.  §   54 

relieved  from  the  payment  of  the  tax  at  the  decedent's  death, 
and  from  onerous  interest  charges,  it  was  nevertheless  held 
that  the  tax  still  accrued  at  decedent's  death,  so  far  as  the 
rights  of  purchasers  were  concerned,  so  as  to  bar  the  right 
of  the  commonwealth  to  begin  any  proceeding,  after  the  ex- 
piration of  20  years  from  decedent's  death,  to  enforce  the 
statutory  lien.163 

It  was  suggested,  however,  before  the  decision  in  Mellon's 
Appeal,  that  the  object  and  intent  of  the  statute  of  1855 
was  not  only  to  delay  the  payment  until  the  tenant  in  re- 
mainder came  into  possession,  but  also  that  the  valuation 
of  his  estate  should  be  made  at  that  time,  thus  giving  him 
the  option  of  waiting  until  the  value  of  his  estate  could  be 
accurately  ascertained  before  it  could  be  appraised.164. 

Again,  where  decedent  died,  and  the  tax  was  payable, 
before  the  passage  of  the  act  of  1855,  but  none  was  imposed, 
and  the  life  tenant  did  not  die  until  1875,  it  was  held  that 
under  the  act  of  1855  the  tax  was  not  payable  until  the  es- 
tate vested  in  possession  or  enjoyment,  but  it  continued  a 
lien,  and  should  be  appraised  as  of  the  date  of  decedent's 
death.165 

In  1886  the  question  of  appraisement  of  remainders  came 
before  the  supreme  court  for  consideration.  "As  previously 
provided  for,"  said  Sterrit,  J.,166  "the  tax  accrues  upon  the 
devolution  of  the  estate  that  is  subject  thereto ;  and  the  law 
contemplates  an  appraisement  as  of  that  date,  not  only  for 
the  purpose  of  ascertaining  the  tax  on  estates  that  vest  in 
possession  and  enjoyment,  but  also  for  the  purpose  of  deter- 

163  See  Mellon's  Appeal  (1886)  114  Pa.  St.  571,  572,  8  Atl.  183,  and 
cases  cited   supra. 

164  McGeary's  Estate  (18S3)  14  Pa.  Law  J.  (N.  S.)  174. 

las  James'  Appeal  (1877)  2  Del.  Co.  Rep.  164;    In  re  Cullen's  Es- 
tate, 26  Wkly.  Notes  Cas.  216. 
166  Mellon's  Appeal,  114  Pa.  St.  572,  8  Atl.  183. 

(237) 


§   54  APPRAISER    AND    APPRAISEMENT.  [Ch.   5 

mining  the  amount  of  the  tax  to  be  paid  on  those  whose 
actual  possession  and  enjoyment  are  deferred  until  the  ex- 
piration of  the  intervening  estate  or  term  of  years.  *  *  * 
There  was  nothing  to  have  prevented  him  [the  register]  from 
causing  an  appraisement  of  that  interest  and  of  the  life  es- 
tate to  be  made;  thereby  ascertaining  the  value  of  the  estate 
in  remainder,  *  *  *  and  thus  fixing  the  amount  of  the 
collateral  inheritance  tax.  In  the  meantime  the  remainder- 
man would  have  had  a  right  to  anticipate  payment,  and  thus 
satisfy  the  lien  by  paying  the  tax  and  accrued  interest  there- 
on." In  Mellon's  Appeal,167  however,  no  administration  of 
the  estate  seems  ever  to  have  been  had,  and  there  was  no 
election  upon  the  part  of  the  remainder-men  to  pay  the  tax 
when  the  estate  vested  in  possession.  The  case  would 
seem,  however,  to  conflict  with  the  earlier  cases  cited,  and 
serves  to  show  that  the  right  to  an  immediate  appraisement 
on  the  part  of  the  commonwealth  was  not  taken  away  by 
the  act  of  1855. 

Whether  the  rule  as  thus  announced  with  respect  to  the 
appraisement  of  estates  in  remainder  has  been  modified  or 
changed  by  the  recent  statute  of  1887  remains  to  be  deter- 
mined. 

After  postponing  the  payment  of  the  tax  until  the  estate 
vests  in  possession,  the  statute  now  provides  that  the  tax 
shall  be  assessed  upon  the  value  of  the  estate  "at  the  time 
the  right  of  possession  accrues  to  the  owner  as  aforesaid." 
This  provision  does  not  seem  to  be  contained  in  the  earlier 
statutes,  and  is  therefore  new.  If  the  right  of  possession 
accrues  "as  aforesaid"  (that  is,  at  the  time  the  estate  ac- 
tually vests  in  possession  and  enjoyment,  and  not  upon  de- 
cedent's death),  then  the  manifest  intention  of  the  legisla- 
ture would  appear  to  be  to  postpone  both  the  appraisement 
and  the  payment  of  the  tax  until  the  remainder -man  comes 

167  Supra. 
(238) 


Ch.   5]  APPRAISER    AND    APPRAISEMENT.  §    54 

into  possession.168  If,  therefore,  the  bond  required  by  the 
statute  is  filed  within  the  year,  the  state  would  seem  to  lose 
the  right  to  an  immediate  appraisement  of  estates  in  re- 
mainder, and  to  this  extent  the  ruling  in  Mellon's  Appeal 169 
would  appear  to  be  modified.  While  the  question  was  not 
presented,  this  view  seems  to  be  confirmed  by  the  recent  case 
of  Commonwealth's  Appeal,170  where,  in  speaking  of  this 
portion  of  the  act,  the  court  said:  "Where,  therefore,  the  act 
declares  that  the  tax  shall  be  assessed  upon  the  value  of  the 
estate  at  the  time  the  right  of  possession  accrues  to  the  own- 
er, or  that  the  tax  shall  be  assessed  on  the  value  of  the 
estate  at  the  time  of  the  payment  of  the  tax,  it  refers  to  the 
then  quantum  of  the  estate,  and  not  to  the  value  of  the  land, 
which  may  be  a  very  different  estate  from  that  which  passed 
from  the  decedent." 

But  the  act  declares,171  in  case  of  failure  to  file  the  bond 
within  one  year  from  decedent's  death,  the  tax  shall  be  im- 
mediately payable  and  collectible.  It  would  seem  that 
where  such  failure  occurred  it  would  afford  strong  evidence 
that  the  remainder-man  declined  to  elect  to  await  the  pos- 
session, and  the  commonwealth  would  seem  to  have  the 
right  to  an  appraisement,172  although  there  does  not  appear 
to  be  any  provision  of  the  statute  providing  for  an  appraise- 
ment in  such  event.  An  appraiser,  however,  may  be  ap- 
pointed as  often  as  and  whenever  occasion  may  require,  and 
under  this  clause  it  would  appear  that  an  appraisement  by 
the  register  could  be  had  in  such  a  case 

(3)  But  while  the  state  does  not  now  seem  to  be  entitled 
to  a  compulsory  appraisement  of  estates  in  remainder,  un- 

168  in  re   McGeary's  Estate,   14  Pa.  Law  J.    (N.   S.)  174;    In  re 
Lines'  Estate  (1893)  155  Pa.  St.  378,  26  Atl.  728. 

169  Supra. 

it o  in  re  Cooper's  Estate,  127  Pa.  St.  435,  441,  17  Atl.  1094. 

i7i  Section  3. 

it 2  see  In  re  Willing's  Estate,  2  Wkly.  Notes  Cas.  307. 

(239) 


§   54  APPRAISER    AND    APPRAISEMENT.  [Ch.   5 

der  the  act  of  1887,  until  the  estate  vests  in  possession  or 
enjoyment,  the  remainder-man  is  given  the  privilege  or  elec- 
tion of  anticipating  payment  of  the  tax,  and  thus  has  an 
immediate  right  to  an  appraisement  of  his  interest  in  re- 
mainder : 

(a)  Under  the  act  of  1855,  where  the  legatee  or  devisee 
elected  to  anticipate  payment  of  the  tax,  the  statute  di- 
rected that  the  same  should  be  received  at  the  then  valua- 
tion of  the  legacy  or  devise,  deducting  the  value  of  the  life 
estate  or  term  of  years. 

(b)  Under  the  act  of  18S7  the  owner  shall  have  the  right 
to  pay  the  tax  at  any  time  prior  to  his  coming  into  posses- 
sion, and  the  tax  shall  be  assessed  on  the  value  of  the  estate 
at  the  time  of  payment  of  the  tax,  after  deducting  the  value 
of  the  life  estate  or  estate  for  years. 

These  two  enactments  seem  to  be  substantially  of  the 
same  purport,  though  couched  in  somewhat  different  lan- 
guage. 

What  is  meant  by  the  "then  valuation  of  the  legacy  or 
devise,"  under  the  act  of  1855,  has  been  declared  to  be  its 
value  as  of  the  date  it  vested, — the  death  of  the  decedent; 
and  the  valuation  of  the  estate  in  remainder  is  to  be  ascer- 
tained by  deducting  the  value  of  the  life  estate  or  term  of 
years  from  the  value  of  the  entire  estate.173 

Under  this  act,  if  tenant  in  remainder  elected,  in  antici- 
pation, to  pay  at  the  death  of  the  decedent,  the  tax  was  ap- 
praisable  on  the  then  valuation  of  the  entire  estate,  less  the 
value  of  the  estate  for  life  or  years;  that  is,  when  the  ten- 
ant of  the  intermediate  estate  was  not  liable,  the  tenant  in 
remainder  had  the  election  either  to  pay  tax  on  the  entire 
estate,  with  interest,  when  he  came  into  actual  possession, 
or  to  pay  at  the  death  of  the  decedent  on  the  then  net  valu- 
ation of  the  estate  in  remainder;    and,  in  consideration  of 

173  Mellon's  Appeal,  114  Pa.  St.  572,  8  Atl.  1S3. 
(240) 


Ch.   5]  APPRAISER    AND    APPRAISEMENT.  §.   54 

such  .anticipated  payment,  her  right  to  the  tax  on  the  inter- 
mediate estate  was  held  to  be  waived  by  the  common- 
wealth.174 

So,  under  the  act  of  1887,  if  tenant  in  remainder  desires 
to  pay  the  tax  at  any  time  prior  to  his  coming  to  the  pos- 
session, it  is  to  be  assessed  on  the  value  of  the  estate  at  the 
time  of  the  payment  of  the  tax,  after  deducting  the  value  of 
the  life  estate  or  term  of  years.  The  value  of  the  estate  of 
the  remainder-man  depends  upon  the  clear  value  of  the  es- 
tate passing  from  the  person  who  died  seised,  and  the  prob- 
able duration  of  the  preceding  life  estate. 

If  the  life  tenant  is  old,  or  his  estate  has  already  been  en- 
joyed for  a  number  of  years,  the  tenant  in  remainder  will 
not  be  kept  out  of  his  interest  so  long  as  otherwise,  and  the 
value  of  the  estate  will  be  greater.175 

And,  as  we  have  already  seen,176  in  estimating  the  clear 
value  of  the  estate  in  remainder  outstanding  debts  and  ob- 
ligations owing  by  decedent  at  the  time  of  his  death  must 
be  taken  into  consideration,  for  they  are  a  lien  against  his 
real  estate,  to  satisfy  which  the  land  may  be  sold;  hence  the 
surplus  or  net  value  of  the  remainder  only  is  liable  to  taxa- 
tion.177 

The  method  of  assessing  the  collateral  inheritance  tax  is 
to  take  the  inventory  and  appraisement  of  the  decedent's 
estate  as  filed  within  30  days  after  his  death,  or  a  new  ap- 
praisement is  made  by  the  state  appraiser,  and  after  deduct- 

174  iu  re  Cooper's  Estate,  127  Pa.  St.  435,  17  Atl.  1094;  In  re 
Willing's  Estate  (1876)  2  Wkly.  Notes  Cas.  307;  In  re  McGeary's 
Estate,  14  Pa.  Law  J.  (N.  S.)  174. 

its  in  re  Cooper's  Estate,  127  Pa.  St.  435,  17  Atl.  1094;  Mellon's 
Appeal,  114  Pa.  St.  564,  8  Atl.  1S3. 

176  Supra,  §  52,  c.  4,  §  49. 

177  in  re  Cooper's  Estate,  supra,  440;  Com.  v.  Freedley,  21  Pa. 
St.  33. 

LAW  INHER.  — 16  (241) 


§   54  APPRAISER    AND    APPRAISEMENT.  [Ch.  5 

ing  therefrom  the  debts  and  liabilities  of  the  decedent,  and 
the  expense  of  settling  his  estate,  to  impose  the  tax  upon 
the  balance  remaining.178 

Where  payment  of  the  tax  is  made  after  the  possession 
accrues,  the  remainder  is  to  be  valued  as  of  the  date  of  pos- 
session.179 And  this  is  so  whether  the  remainder  arises  by 
formal  bequest,  or  by  operation  of  law.180 

(4)  Under  a  recent  ruling  in  Pennsylvania,  it  has  been 
held  181  that  where  the  life  tenant  (a  widow)  has  a  power 
of  disposition  of  the  corpus  of  the  estate  during  life,  and 
there  is  a  bequest  to  collaterals  of  the  surplus  that  shall 
remain  after  her  death,  no  tax  can  be  imposed  upon  the 
residuum  until  her  death,  as  it  is  impossible  to  ascertain  its 

17  8  Williamson's  Estate,  49  Leg.  Int.  106. 

179  In  re  Cooper's  Estate,  127  Pa.  St.  435,  17  Atl.  1094.  See  Mel- 
Ion's  Appeal,  114  Pa.  St.  572,  8  Atl.  1S3. 

iso  in  re  McGeary's  Estate,  14  Pa.  Law  J.  (N.  S.)  174,  citing  Big 
Black  Creek  Imp.  Co.  v.  Com.,  94  Pa.  St.  453.  It  would  appear  to 
be  to  the  advantage  of  the  remainder-man  to  anticipate  payment  of 
the  tax  instead  of  paying  it  at  the  time  the  estate  vests  in  posses- 
sion. This  appears  from  the  method  which  I  am  informed  is  adopt- 
ed by  the  registers  in  Pennsylvania  in  assessing  and  taxing  estates 
in  remainder.  For  instance,  if  there  is  a  devise  of  real  estate  worth 
$5,000,  subject  to  a  life  estate,  and  at  the  death  of  the  testator  the 
life  tenant  was  GO  years  old,  reference  to  the  Carlisle  Table  will 
give  figure  8,304,  the  product  of  which,  multiplied  by  5  per  cent, 
(the  rate  directed  by  the  court  to  be  used  by  the  register  for  this 
purpose)  of  $5,000  ($250),  gives  the  value  of  the  life  estate,  viz. 
$2,070,  the  value  of  the  remainder  being  the  difference  between  that 
amount  and  $5,000,  viz.  $2,924.  The  life  tenant  would  therefore  have 
to  pay  the  tax  upon  $2,076,  and,  if  the  remainder-man  wished  to  pay 
tax  immediately,  he  would  have  to  pay  it  upon  $2,924  only,  but,  if 
he  did  not  pay  the  tax  until  the  remainder  vested,— and  he  cannot 
be  compelled  to  pay  it  before  that  time,— he  would  have  to  pay  it 
upon  $5,000.  The  practice  under  the  old  acts  was  to  pay  the  tax 
annually  upon  the  yearly  value  of  the  estate. 

isi  In  re  Nieman's  Estate,  131  Pa.  St.  346,  18  Atl.  900.    See  Mel- 
Ion's  Appeal,  supra. 
<242) 


Ch.  5]  APPRAISER  AND    APPRAISEMENT.  §    54 

amount  or  value,  if  any,  until  that  time.     The  same  result 
has  been  reached  in  New  York.182 

But  where  the  widow  has  such  power  of  disposition,  and 
a  valid  trust  is  created  of  the  residue  for  charitable  pur- 
poses, it  seems,  the  value  of  the  life  tenant's  interest,  and 
of  the  amount  necessary  for  her  support,  being  ascertain- 
able by  evidence,  a  tax  may  be  imposed  upon  such  residue.183 

(d)  New  York.™ 

(1)  Provisions  of  Act  of  1892. 

In  this  state  the  method  of  appraisement  and  taxation  of 
remainder  and  future  estates,  contingent  or  otherwise,  is 
now  regulated  by  the  transfer  tax  act  of  lS92,18r'  repealing 
the  former  act  of  1887. 

The  statute  now  provides  186  that  if  the  property  upon  the 
transfer  of  which  a  tax  is  imposed  shall  be  an  estate,  income, 
or  interest  for  a  term  of  years  or  for  life,  or  determinable 
upon  any  future  or  contingent  estate,  or  shall  be  a  remain- 
der or  reversion,  or  other  expectancy,  real  or  personal,  the 
entire  property  or  fund  by  which  such  estate,  income  or  in- 
terest is  supported,  or  of  which  it  is  a  part,  shall  be  ap- 
praised immediately  after  such  transfer,  or  as  soon  there- 
after as  may  be  practicable,  at  the  fair  and  clear  market 
value  thereof  at  that  time;  provided,  however,  that  when 
such  estate,  income,  or  interest  shall  be  of  such  a  nature 
that  its  fair  and  clear  market  value  cannot  be  ascertained 

is2  in  re  Cager,  111  N.  Y.  343,  18  N.  E.  86G.  See  cases  discussed, 
subdivision  a,  post. 

issin  re  Brewer's  Estate,  15  Pa.  Law.  J.  (N.  S.)  433,  435;  1G  Pa. 
Law  J.  (N.  S.)  114. 

184  For  the  law  of  appraisements  of  remainders  and  future  estates 
under  the  statutes  of  other  states,  see  statutes,  Appendix. 

185  Appendix,  I.  e,  Laws  1S92,  c.  399,  §§  11,  13.  For  act  of  1SS7, 
c.  713,  §§  2,  13,  see  Appendix,  I.  a.     See,  also,  chapter  G,  §  3,  subd.  3. 

186  Laws  1892,  c.  399,  §  11. 

(2i3) 


§   54  APPRAISER    AND    APPRAISEMENT.  [Ch.   5 

at  such  time,  it  shall  be  appraised  in  like  manner  at  the  time 
when  such  value  first  became  ascertainable.  The  value  of 
every  future  or  contingent  or  limited  estate,  income,  inter- 
est, or  annuity  dependent  upon  any  life  or  lives  in  being  shall 
be  determined  by  the  rule,187  method,  and  standard  of  mor- 
tality and  value  employed  by  the  superintendent  of  insur- 
ance in  ascertaining  the  value  of  policies  of  life  insurance 
and  annuities  for  the  determination  of  liabilities  of  life  in- 
surance companies,  except  that  the  rate  of  interest  for  com- 
puting the  present  value  of  all  future  and  contingent  inter- 
ests or  estates  shall  be  5  per  centum  per  annum.  The  stat- 
ute further  provides188  that  the  superintendent  of  insur- 
ance shall,  on  the  application  of  any  surrogate,  determine 
the  value  of  any  such  future  or  contingent  estates,  income, 
or  interest  limited,  contingent,  dependent,  or  determinable 
upon  the  life  or  lives  of  persons  in  being,  upon  the  facts  con- 
tained in  any  such  appraiser's  report,  and  certify  the  same 
to  the  surrogate,  and  his  certificate  shall  be  conclusive  evi- 
dence that  the  method  of  computation  adopted  therein  is 
correct.  It  also  provides189  that  all  taxes  imposed  shall 
be  due  and  payable  at  the  time  of  the  transfer:  provided, 
however,  that  taxes  upon  the  transfer  of  any  estate,  prop- 
erty, or  interest  therein,  limited,  conditioned,  dependent,  or 
determinable  upon  the  happening  of  any  contingency  or  fu- 
ture event,  by  reason  of  which  the  fair  market  value  thereof 
cannot  be  ascertained  at  the  time  of  the  transfer  as  herein 
provided,  shall  accrue  and  become  due  and  payable  when 
the  persons  or  corporations  beneficially  entitled  thereto  shall 
come  into  actual  possession  or  enjoyment  thereof.190 

187  Prior  to  1887,  the  Northampton  Tables  were  followed.     In  re 
Robertson,  5  Dem.  Sur.  92. 

188  Laws  1S92,  c.  399,  §  13. 

189  Laws  1892,  e.  399,  §  3. 

ioo  See,   also,  section  22,  providing   that  the  word   "transfer."   as 
used  in  this  act,  shall  be  taken  to  include  the  passing  of  property  or 
(244) 


Ch.   5]  APPRAISER    AND    APPRAISEMENT.  §    54 

Section  11  of  the  statute  of  1892,  as  originally  enacted  in 
1885,  and  continued  in  1887,  was,  it  seems,  taken  from  the 
early  statutes  of  Pennsylvania  in  existence  prior  to  1855.191 
Under  the  statutes  of  1885  and  1887,  although  now  repealed, 
the  decisions  are  of  use,  inasmuch  as  the  same  statutory  pro- 
visions are  continued  substantially  in  the  act  of  1892,  with, 
as  we  have  seen,  some  important  additions  regulating  the 
assessment  and  taxation  of  contingent  and  future  estates. 
It  was  adjudged  under  the  acts  of  1885  and  1887  as  follows: 

(a)  Vested  Estates  and  Remainders. 

(1)  Vested  remainders  or  estates,192  limited  upon  life  es- 
tates or  terms  of  years,  are  appraisable  immediately  upon 
the  death  of  the  decedent.193 

(b)  Contingent  Estates — When  not  Appraisable  at  Death. 

(2)  But  where,  from  the  nature  of  the  estate  given  to  the 
life  tenant  or  first  taker,  it  is  impossible  at  decedent's  death 
to  ascertain  the  fair  market  value  of  the  estate  in  remainder 
or  future  estate  until  the  death  of  the  life  tenant,  no  ap- 
praisement of  such  ultimate  devise  can  be  made  at  dece- 
dent's death,  nor  until  the  estate  vest  in  the  actual  posses- 
sion or  enjoyment  of  the  beneficiary.194     The  statute  of 

any  interest  therein  in  possession  or  enjoyment,  present  or  future, 
by  inheritance,  descent,  devise,  etc. 
»'Ji  See  supra,  p.  237,  note. 

192  See  a  valuable  note  on  "Vesting"  in  IS  Abb.  N.  C.  300  (referred 
to  in  Talmadge  v.  Seaman,  85  Hun,  242,  32  N.  Y.  Supp.  906),  and 
in  chapter  6,  §  5S,  subds.  c,  3a,  "Vested  Estates."  See,  also,  on  the 
subject  of  vesting,  In  re  Curtis'  Estate,  73  Hun,  1S5,  25  N.  Y.  Supp. 
909;  Id.,  142  N.  Y.  219,  36  N.  E.  8S7;  In  re  Hoffman's  Estate,  143 
N.  Y.  334,  38  N.  E.  311;   In  re  Stiles'  Estate  (Suit.)  3  N.  Y.  Supp.  137. 

193  in  re  Vinot's  Estate  (Surr.)  7  N.  Y.  Supp.  517;  In  re  Stanford, 
9  N.  Y.  Law  J.  327;  In  re  Le  Fever,  5Dem.  Sur.  184;  In  re  Cogswell. 
4  Dem.  Sur.  248;  In  re  Higgins,  36  N.  Y.  Daily  Reg.  906;  In  re 
Hopkins,  6  Dem.  Sur.  1;  In  re  Van  Rensselaer,  N.  Y.  Law  J.  May 
28,  1889;    In  re  Ferrer,  N.  Y.  Law  J.  Jan.  30,  1892,  p.  1002. 

is*  In  re  Cager's  Will,    111  X.  Y.  342,    18  N.   E.  S0o.      See  In  re 


§    54  APPRAISER    AND    APPRAISEMENT.  [Ch.  5 

1892  *  now  provides  that  where  the  estate,  income,  or  inter- 
est shall  be  of  such  a  nature  that  its  fair  and  clear  market 
value  cannot  be  ascertained  at  the  time  of  the  transfer,  it 
shall  be  appraised  at  the  time  when  such  value  first  became 
ascertainable; 195  that  taxes  upon  any  estate  or  interest 
dependent  or  determinable  upon  any  contingency  or  future 
event,  by  reason  of  which  the  fair  market  value  thereof  can- 
not be  ascertained  at  the  time  of  the  transfer,  shall  accrue 
and  become  due  and  payable  when  the  persons  or  corpora- 
tions beneficially  entitled  thereto  shall  come  into  the  actual 
possession  or  enjoyment  thereof. 

The  leading  case  in  New  York  on  this  subject  under  the 
act  of  1885  is  that  of  Cager,196  where  the  rule  and  method 
of  valuation  of  such  estates  was  stated  by  Ruger,  C.  J.,  as 
follows:  "When  the  question  as  to  whether  any  property  at 
all   shall  pass  under  the  limitation  over,  and,  if  so,  how 

Curtis,  142  N.  Y.  219,  36  N.  E.  8S7,  affirming  73  Hun,  185,  25  N. 
Y.  Supp.  909;  In  re  Roosevelt's  Estate,  143  N.  Y.  120,  38  N.  E.  281, 
affirming  76  Hun,  257,  27  N.  Y.  Supp.  711;  In  re  Hoffman's  Estate. 
143  N.  Y.  330,  38  N.  E.  311;  Id.,  76  Hun,  399,  27  N.  Y.  Supp.  1086; 
In  re  Wheeler's  Estate  (Surr.)  22  N.  Y.  Supp.  1075;  In  re  Wallace's 
Estate  (Surr.)  4  N.  Y.  Supp.  405,  466,  citing  In  re  Bruce;  Talmadge 
v.  Seaman  (Sup.)  32  N.  Y.  Supp.  900.  Form  of  orders  in  such  cases 
given.  In  re  Clark's  Estate  (Suit.)  5  N.  Y.  Supp.  199;  In  re  Le 
Fever,  5  Derm  Sur.  1S4,  distinguishing  In  re  Cogswell,  supra;  In  re 
Beujamin,  30  N.  Y.  Daily  Reg.  900;  In  re  Hopkins,  0  Dem.  Sur.  1; 
In  re  Higgins,  supra;  In  re  Fleming's  Estate,  N.  Y.  Law  J.  Oct.  15. 
1S89;  In  re  Matthews'  Estate,  N.  Y.  Law  J.  July  27,  1889;  In  re 
Bennet's  Estate,  N.  Y.  Law  J.  March  4,  1889,  p.  1814;  In  re  Stewart, 
131  N.  Y.  274,  30  N.  E.  184;  Id.  (Surr.)  10  N.  Y.  Supp.  15;  In  re  Leavitf  s 
Estate  (Surr.)  4  X.  Y.  Supp.  179.  See  Mellon's  Appeal,  114  Pa.  St. 
573,  574,  8  Atl.  1S3;  In  re  McGeary's  Estate,  14  Pa.  Law  J.  (N.  S.) 
174;  In  re  Nieman's  Estate,  131  Pa.  St.  340,  18  Atl.  900;  In  re 
Brewer's  Estate,  15  Pa.  Law  J.  (N.  S.)  433,   10  Pa.  Law  J.  (X.  S.)  114. 

*  Laws  1892,  c.  399,  §  11. 

las  Laws  1892,  c.  399,  §  3. 

196  111  N.  Y.  343,  18  N.  E.  866. 
(21G) 


Ch.   5]  APrKAISER    AND    APPRAISEMENT.  §    54 

much,  depends  upon  the  will  of  the  first  taker,  we  are  unable 
to  see  any  rule  by  which  such  value  can  be  determined.  In 
such  a  case  there  is  no  basis  upon  which  the  value  of  the 
devise  can  be  appraised,  and  no  foundation  for  the  imposi- 
tion of  any  tax,  and  the  provision  for  the  giving  of  the  con- 
ditional bond  therefor  is  wholly  inapplicable." 

In  order  that  the  tax  may  be  imposed  immediately  upon 
the  death  of  the  decedent,  two  things  are  necessary:  First, 
to  determine  definitely  the  fair  market  value  of  the  property 
subject  to  the  tax;  and,  second,  the  person  to  whom  such 
property  passes.197 

Where,  therefore,  there  is  a  bequest  to  an  exempt  person 
for  life,  with  a  limited  power  of  disposition  over  the  corpus 
of  the  estate  given  to  the  life  tenant,  and  with  remainder 
over  after  his  death  of  what  shall  remain,  such  remainder  is 
not  appraisable,  as  it  is  impossible  to  ascertain  its  value,  if 
any,  until  the  death  of  the  life  tenant,  as  the  latter  may  use 
and  dispose  of  the  whole  estate  during  his  lifetime.198 

Under  this  rule,  application  for  the  appointment  of  an  ap- 
praiser will  be  denied  where  the  persons  among  whom  the 
estate  is  to  be  divided  on  the  death  of  the  life  tenant,  or 
the  shares  to  which  the  legatees  will  be  then  entitled,  can- 
not be  ascertained  until  such  life  tenant's  death.199  The 
same  doctrine,  as  we  have  seen,  has  been  recently  announced 
in  Pennsylvania.200  But  it  seems  when  the  amount  neces- 
sary for  the  life  tenant — a  widow — can  be  ascertained  and 

197  in  re  Clark  (Suit.)  5  N.  Y.  Supp.  199. 

las  In  re  Cager,  111  N.  Y.  343,  18  N.  E.  800;  In  re  Hopkins,  0  Dem. 
Sur.  1;  In  re  Fleming,  N.  Y.  Law  J.  Oct.  15,  1889,  and  cases  cited  supra; 
In  re  Xieman's  Estate,  131  Pa.  St.  340,  18  Atl.  900.  But  see  In  re 
Leavitt's  Estate  (Surr.)  4  N.  Y.  Supp.  179;  In  re  Brewer's  Estate,  15 
Pa.  Law  J.  (N.  S.)  433,  10  Pa.  Law  J.  (N.  S.)  114. 

199  In  re  Benjamin,  30  N.  Y.  Daily  Reg.  900;  In  re  Stewart  (Surr.) 
10  X.  Y.  Supp.  15;  Id.,  131  N.  Y.  274,  30  N.  E.  184;  In  re  Millward's 
Estate  (1894)  0  Misc.  Rep.  425,  27  N.  Y.  Supp.  280. 

200  in  re  Nieman's  Estate,  supra. 

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§   54  APPRAISER    AND    APPRAISEMENT.  [Ch.   5 

fixed,  and  there  is  a  valid  trust  in  remainder  to  charitable 
uses,  although  she  may  have  a  limited  power  of  disposition, 
a  tax  is  assessable  upon  the  remainder-men.201 

(c)  May  be  Appraised  on  Vesting. 

(3)  But  where  no  appraisement  can  be  had  at  decedent's 
death,  and  the  contingent  estate  or  remainder  subsequently, 
on  the  death  of  the  life  tenant,  actually  vests  in  possession 
or  enjoyment  in  a  taxable  heir  or  legatee,  an  appraisement 
will  then  be  allowed,  and  the  tax  imposed.  Thus  the  act 
of  1892  now  provides.202 

In  Re  Cager  203  it  was  held  that  where  the  present  value 
of  property  which  is  devised  to  one  with  a  limitation  over 
to  others  upon  the  happening  of  some  event  which  may  or 
may  not  occur  can  be  ascertained,  then  a  ground  upon  which 
an  approximate  estimate  of  the  value  of  the  ultimate  devise 
appears,  and  it  may  be  made.  In  such  a  case  the  act  en- 
ables a  tax  to  be  imposed  and  collected  upon  the  ulterior 
devises  through  the  medium  of  a  bond  to  be  given  by  the  re- 
spective legatees  when  they  come  into  possession  of  the  de- 
vised property. 

In  cases  of  this  character  it  was  said  in  the  Cager  Case 
that  it  was  possible  that  no  appraisement  could  be  had  after- 
wards, if  not  allowed  at  the  death  of  the  decedent.  This 
view  of  the  law  would  seem,  however,  to  be  obiter  dicta,204 

201  in  re  Brewer's  Estate,  supra. 

202  Laws  1892,  c.  390,  §§  3.  11,  13;  In  re  Wallace  (Suit.)  4  N.  Y.  Supp. 
465,  400,  citing  In  re  Bruce,  supra;  In  re  Clark  (Suit.)  5  N.  Y.  Supp. 
199;  In  re  Leavitt's  Estate  (Suit.)  4  N.  Y.  Supp.  179;  In  re  Nieman's 
Estate,  131  Pa.  St.  340,  18  Atl.  900;  In  re  Stewart,  supra,  distinguishing 
In  re  Cager,  111  N.  Y.  350,  IS  N.  E.  800.  See  In  re  Curtis,  142  N. 
Y.  219,  30  N.  E.  8S7;  In  re  Roosevelt,  143  N.  Y.  120,  3S  N.  E.  281; 
In  re  Hoffman,  143  N.  Y.  330,  38  N.  E.  311;  Talmadge  v.  Seaman 
(Sup.)  32  N.  Y.  Supp.  900,  85  Hun,  242,  reversed  as  In  re  Seaman 
(Oct.  8,  1S95;   Ct.  App.)  41  N.  E.  401. 

203  Hi  N.  Y.  343,  18  N.  E.  800. 

204  see  In  re  Stewart  (Suit.)  10  N.  Y.  Supp.  15;  Id.,  131  N.  Y.  274, 
30  N.  E.  184;  In  re  Nieman's  Estate  and  cases  cited  supra. 

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Ch,   5]  APPRAISER    AND    APPRAISEMENT.  §    54 

and  the  provision  of  the  statute  allowing  an  appraiser  to  be 
appointed  as  often  as  and  whenever  occasion  may  require 
was  evidently  overlooked.205  As  will  be  seen,  this  clause  of 
the  act  of  1892  is  now  much  broader.* 

The  intention  of  this  clause  must  be  to  meet  such  cases 
in  which  no  appraisement  can  be  had  upon  decedent's 
death;206  otherwise  many  estates  fully  within  the  inten- 
tion of  the  act  would  escape  taxation. 

In  Re  Vassar  207  the  court  said,  in  referring  to  life  and 
future  estates  under  the  act  of  1887,  that  its  provisions  in- 
dicated the  legislative  intent  as  requiring  the  appraisal  to 
be  made  immediately  after  the  death  of  the  decedent,  and 
that  the  property  should  be  appraised  as  soon  after  death 
as  practicable. 

In  Re  Stewart 208  a  power  of  appointment  was  conferred 
upon  the  trustee  by  will,  authorizing  him  to  convey  the  prop- 
erty described  in  the  power  to  certain  persons,  with  a  dis- 
cretion as  to  the  appointees.  Four  years  afterwards  he  con- 
veyed to  certain  of  the  legatees  who  were  not  exempt,  and, 
in  holding  the  property  passing  to  them  liable  to  the  tax, 
Ransom,  S.,  said:  "It  is  true  that  at  the  date  of  the  death 
of  Mrs.  Stewart  the  appraiser  could  not  determine  either  the 
value  of  the  estate  which  might  eventually  become  taxable, 
or  the  persons  to  whom  it  would  pass;  and  he  could  not, 
therefore,  make  any  appraisal.  It  has  been  the  practice  of 
this  court  to  suspend  all  proceedings  as  to  such  contingent 
estates  until  such  contingencies  happen,  with  a  view  to  the 

205  Appendix,  I.  e,  Laws  1S92,  c.  399,  §  13. 
*  Chapter  399.  §  11. 

206  See  Com.  v.  Freedley,  21  Pa.  St.  33;   section  54  d  c. 

207  127   N.   Y.  1,   27  N.  E.  394. 

208  io  N.  Y.  Supp.  15  (Surr.),  and  131  N.  Y.  274,  30  N.  E.  1S4.  See. 
also,  In  re  Purroy,  7  N.  Y.  Law  J.  May  G,  1S92,  344;  In  re  Cunning- 
ham, 7  N.  Y.  Law  J.  July  21,  1892,  954,  and  In  re  Stanford,  N.  Y. 
Law  J.  May  6,  1893. 

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§    54  APPRAISER    AND    APPRAISEMENT.  [Ch.   5- 

appointment  of  an  appraiser  at  that  time  to  make  the  ap- 
praisement.209 *  *  *  The  claim  that  at  the  death  of  this 
decedent  there  was  no  estate  that  could  be  held  subject  to 
the  tax,  and  that,  therefore,  there  could  be  no  tax  assessed 
now,  cannot  be  sustained.  It  is  a  well-settled  principle  of 
the  law  that  where  parties  take  under  a  power  of  appoint- 
ment they  take  under  the  instrument  creating  the  power,  so 
that  the  parties  named  by  H.  under  the  power  given  him 
must  be  regarded  as  the  persons  selected  by  Mrs.  Stewart." 
These  views  were  sustained  by  the  court  of  appeals,210  hold- 
ing that  although  the  property  was  not  appraisable  at  de- 
cedent's death,  under  the  act  of  1885,  it  became  both  ap- 
praisable and  taxable  when  the  power  of  appointment  was 
exercised  by  the  trustee. 

In  Re  Curtis  211  the  question  of  the  appraisement  or  valu- 
ation of  contingent  interests  at  death  of  the  testator  was 
discussed,  but  not  decided.  The  will  of  decedent  created 
trusts  for  life  for  the  benefit  of  two  daughters  and  two 
grandchildren,  with  remainders  to  such  of  her  nephews  and 
nieces  named,  living  at  the  time  of  the  successive  termina- 
tion of  each  trust,  and  if  any  of  them  should  then  be  deadr 
leaving  issue,  to  such  issue.  The  surrogate,  basing  his  opin- 
ion upon  In  re  Stewart,212  held  that  the  remainders  were 
both  immediately  assessable  and  taxable.  In  holding,  under 
the  act  of  18S5,  that  the  remainders  were  not  taxable  until 
the  successive  termination  of  each  trust,  for  the  reason  it 
could  not  then  be  determined  whether  the  property  would 

209  Citing  In  re  Wallace  and  In  re  Clark,  supra,  note  202.  See  In 
re  Stanford,  N.  Y.  Law  J.  May  0,  1893. 

210  in  re  Stewart  (1S92)  131  N.  Y.  274,  30  N.  E.  1S4.  See  the  sub- 
ject of  powers  discussed  in  this  case  and  in  Re  Johnson,  N.  Y.  Law 
J.  June  17,  1892. 

2ii  (1894)  142  N.  Y.  219,  38  N.  B.  SS7,  affirming  73  Hun,  185,  25 
N.  Y.  Supp.  909. 
212  In  re  Stewart,  131  N.  Y.  277,  30  N.  E.  1S4. 
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Ch.   5]  APPRAISER    AND    APPRAISEMENT.  §   54 

pass  to  taxable  persons,  or  to  exempt  persons,  Finch,  J., 
said: 

"The  surrogate  seems  to  have  rested  his  conclusion  upon 
our  recent  decision  in  Re  Stewart.  The  opinion  in  that  case 
cannot  be  held,  in  any  respect,  to  justify  such  a  construc- 
tion. It  does  decide  that  contingent  interests,  although 
vesting  in  possession  at  a  future  day,  may  be  at  once  valued 
and  assessed,  and  that  such  interests,  vesting  in  no  specific 
beneficiary  when  the  will  takes  effect,  cannot  be  taxed,  but 
come  under  the  operation  of  the  law  when  the  event  which 
locates  and  fixes  them  occurs.  It  may  be  that  where  the 
only  contingency  of  the  future  is  upon  which  of  several 
named  persons  or  classes  of  persons,  all  of  wmoni  are  liable 
to  suffer  the  taxation,  the  beneficial  interests  will  ultimately 
devolve,  the  appraisal  and  assessment  need  not  be  post- 
poned,213 though  even  that  is  hardly  a  prudent  construction, 
but  need  not  now  be  discussed;  yet  where  the  contingency 
touches  the  taxable  character  of  the  succession,  where  it  is 
only  in  the  chance  of  uncertain  events  that  the  beneficial 
interests  will  finally  alight  where  they  will  be  taxable  at  all, 
a  delay  until  the  contingency  is  solved  is  both  just  and  nec- 
essary.    *     *     * 

"A  time  will  come,  at  the  close  of  the  trusts,  when  the 
question  can  be  settled;  and  then,  if  the  property  passes  to 
nephews  and  nieces,  the  proper  assessment  can  be  made  and 
collected." 

In  Re  Roosevelt 214  the  question  of  the  assessment  of  con- 
tingent estates  arose  under  the  act  of  1887;  and,  in  follow- 
ing the  views  expressed  in  the  Curtis  Case,215  it  wras  held 
that,  as  to  the  remainders,  there  was  a  contingency  affect- 

213  See  Laws  1892,  c.  399,  §  11. 

21*143  N.  Y.  120,  3S  N.  E.  2S1  (1S94),  affirming  76  Hun,  257,  27 
N.  Y.  Supp.  741. 
215  73  Hun,  1S5,  25  N.  Y.  Supp.  909. 

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§    54  APPRAISER    AND    APPRAISEMENT.  [Ch.   5 

ing  them  which  rendered  it  impossible  to  ascertain  their 
present  fair  and  clear  market  value. 

Bartlett,  J.,  said : 

"In  the  case  at  bar  there  is  a  contingency  affecting  the 
value  of  the  estate  *  *  *  which  brings  it  strictly  with- 
in the  principle  of  the  Curtis  Case.     *     *     * 

"The  legislature,  in  the  act  of  1892,  has  given  a  practical 
construction  to  its  previous  legislation  on  this  subject  when 
it  provides  that,  where  the  fair  market  value  of  the  property 
or  interest  cannot  be  ascertained  at  the  fime  of  the  transfer, 
the  tax  shall  become  due  and  payable  when  the  beneficiary 
shall  come  into  actual  possession  or  enjoyment."  216 

The  provisions  of  the  act  of  1892  217  have  already  been  re- 
ferred to  at  length; 218  and  their  effect  would  seem  to  be  to 
postpone  both  the  appraisement  and  taxation  of  contingent 
or  future  estates,  where  their  value  cannot  be  ascertained 
at  the  time  of  death,  to  the  time  when  they  vest  in  actual 
possession  or  enjoyment.  This,  as  we  have  seen,  is  the  con- 
struction now  placed  upon  these  provisions  by  the  court  of 
appeals.219 

In  Re  Hoffman,220  where  the  question  was  considered  un- 
der the  act  of  1892,  the  will  created  a  life  estate  upon  which 
another  life  estate  was  contingent  in  the  event  that  the 
second  life  tenant  survived  the  first,  and,  in  case  she  did 
not  so  survive,  with  remainder  over  to  nephews  and  nieces. 
Under  the  act  of  1892,  there  being  a  tax  of  5  per  cent,  if  the 

216  Laws  1S92,  c.  399,  §  3. 

217  Appendix,  I.  e,  c.  399,  §§  3,  11,  22. 

218  Page  245,  supra, 

2i9  in  re  Roosevelt  (1894)  143  N.  Y.  120,  38  N.  E.  2S1,  affirming  70 
Hun,  257,  27  N.  Y.  Supp.  741;  In  re  Hoffman's  Estate,  143  N.  Y.  330, 
3S  N.  E.  311,  modifying  70  Hun,  399-403,  27  N.  Y.  Supp.  1080,  and  dis- 
tinguishing In  re  Curtis,  142  N.  Y.  219,  30  N.  E.  8S7;  In  re  Wheeler's 
Estate  (Surr.)  22  N.  Y.  Supp.  1075. 

220  1-13  n.  Y.  330,  38  N.  E.  311. 
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Ch.   5]  APPRAISER    AND    APPRAISEMENT.  §    54 

property  passed  to  nephews  and  nieces,  and  a  tax  of  1  per 
cent,  if  it  passed  to  lineal  heirs,  a  fact  was  presented  which 
could  not  be  determined  until  the  remainders  vested  in  pos- 
session or  enjoyment* 

Finch,  J.,  in  referring  to  this  difficulty,  said: 
'Tor  taxation  is  a  hard  fact,  and  should  attach  only  to 
such  ownership,  and  may  properly  be  compelled  to  wait  un- 
til chances  and  possibilities  develop  into  the  truth  of  an  ac- 
tual estate  possessed,  or  to  which  there  exists  an  absolute 
right  of  future  possession.  I  am  not  shutting  my  eyes  to 
the  statutory  language,  which  is  quite  broad. 

"The  property  taxed  may  be  an  estate  'for  a  term  of  years 
or  for  life  or  determinable  upon  any  future  or  contingent 
estate'  or  'a  remainder,  reversion  or  other  expectancy,'  and 
the  tables  of  mortality  may  be  resorted  to  for  the  ascertain- 
ment of  values.  And  yet  it  is  the  'fair  market  value,'  the 
'fair  and  clear  market  value,'  which  is  to  be  assessed,  and 
with  the  proviso  that  if  that  value  cannot  be  at  once  as- 
certained the  appraisal  is  to  be  adjourned.221  I  can  scarcely 
imagine  a  contingency,  depending  upon  lives,  which  mathe- 
matics could  not  solve  by  the  doctrine  of  chances  and  the 
averages  of  mortality,  and  there  could  hardly  be  an  adjourn- 
ment, unless  upon  some  rare  contingency,  having  no  aver- 
ages; and  the  results  in  cases  dependent  upon  lives  might 
still  leave  the  'fair  and  clear  market  value'  in  doubt,  and 
yield  sums  which  no  sale  in  the  market  would  produce.  My 
judgment  is  further  guided  by  the  very  significant  definition 
of  the  word  'transfer.' 222  It  'shall  be  taken  to  include  the 
passing  of  property  or  any  interest  therein  in  possession  or 
enjoyment  present  or  future.'  It  thus  contemplates  a  pres- 
ent enjoyment,  or  a  fixed  and  absolute  right  of  future  enjoy- 
ment, and  adjourns  the  appraisal  until  the  fulfillment  of 
contingencies  leaves  those  results  attained.    Here  there  must 

221  Laws  1892,  c.  399,  §  11.  222  Laws  1892,  c.  399,  §  22. 

(253) 


§    54  APPRAISER    AND    APPRAISEMENT.  [Ch.    5 

be  that  adjournment  until  the  rights  of  Ella  [contingent  life 
tenant]  and  Olga  [contingent  remainder-man]  become  fixed 
and  actual.  The  result  does  no  injustice  to  the  state.  The 
trust  fund  must  remain  in  the  hands  of  the  executors  to  feed 
the  life  estates,  and  for  payment  over  of  the  remainder.  The 
executors  must  pay  the  tax  when  they  know  against  whom 
it  is  chargeable,  and  the  rate  to  be  assessed.  The  state  will 
get  its  tax  when  the  legatees  get  their  property."  223 

So,  under  the  act  of  1S92,  the  value  of  a  bequest  for  life 
to  testator's  widow,  or  until  she  marries  again,  cannot  be 
determined,  for  the  purpose  of  taxation,  until  the  termina- 
tion of  the  widow's  estate,  either  by  death  or  marriage.224 

Where  real  estate  converted  by  the  will  of  testator  into 
personalty  was  largely  owned  by  him  and  others  as  partners, 
and  used  in  the  prosecution  of  business,  the  actual  value  of 
which,  or  testator's  interest  therein,  was  dependent  on  the 
manner  in  which  it  was  controlled  by  the  executors,  the  as- 
sessment and  collection  of  the  tax  to  which  the  same  is  sub- 
ject should  be  postponed  until  the  persons  entitled  thereto 
come  into  the  actual  possession  or  enjoyment  thereof.225 

(d)  When  Appraisahle  at  Death. 

(4)  It  was  held,  under  the  acts  in  force  prior  to  1892,  that 
where  the  fund  or  legacy  constituting  such  contingent  es- 
tate or  remainder  was  certain  and  fixed  in  amount,  but  the 
person  in  whom  it  might  eventually  vest  might  never  take 
the  estate  or  remainder,  or  it  could  not  be  determined  at  de- 
cedent's death,  whether  the  estate  would  vest  in  a  taxable 
heir  or  legatee,  an  appraisement  might  nevertheless  be  made 
at  decedent's  death,  but  the  payment  of  the  tax  was  to  be 

223  See,  also,  Talmadge  v.  Seaman.  So  Hun,  2  '2.  32  X.  Y.  Snpp. 
906;  reversed  as  In  re  Seaman  (Oct  8,  1895;   Ct  App.)  41  N.  E.  401. 

224  in  re  Millward's  Estate  (Suit.)  27  N.  Y.  Supp.  285. 

225  Laws  1892,  e.  399,  §  3;  In  re  Wheeler's  Estate  (1892)  1  Misc.  Rep. 
450,  22  N.  Y.   Supp.   1075. 

(254) 


Ch.   5]  APPRAISER    AND    APPRAISEMENT.  §    54 

postponed  until  the  estate  actually  vested  in  possession  or 
enjoyment.  In  such  case  the  tax  could  not  be  imposed  up- 
on the  principal  fund  in  the  possession  of  the  exempt  life 
tenant,  as  he  has  a  right  to  use  such  fund  intact  and  unim- 
paired.220 This  rule  would  seem  to  be  sanctioned  under  the 
act  of  1892,22T  providing  that  if  the  property  upon  the  trans- 
fer of  which  a  tax  is  imposed  shall  be  an  estate,  income,  or 
interest  for  a  term  of  years,  or  for  life,  or  determinable  upon 
any.  future  or  contingent  estate,  or  shall  be  a  remainder  or 
reversion,  or  other  expectancy,  real  or  personal,  the  entire 
property  or  fund  by  which  such  estate,  income,  or  interest 
is  supported,  or  of  which  it  is  a  part,  shall  be  appraised  im- 
mediately after  such  transfer,  or  as  soon  thereafter  as  may 
be  practicable,  at  the  fair  and  clear  market  value  thereof  at 
that  time:  provided,  however,  that  when  such  estate,  in- 
come, or  interest  shall  be  of  such  a  nature  that  its  fair  and 
clear  market  value  cannot  be  ascertained  at  such  time,  it 
shall  be  appraised  in  like  manner  at  the  time  when  such 
value  first  became  ascertainable.228 

Where,  therefore,  an  annuity  or  legacy  be  contingent  upon 
the  annuitant  surviving  the  life  tenant,  or  of  the  legatee 
reaching  a  certain  age,  they  are  appraisable  upon  decedent's 
death ;  but,  it  being  then  impossible  to  determine  to  whom 
the  property  will  go,  the  question  as  to  whether  the  annuity 
or  legacy  is  subject  to  taxation  cannot  be  determined,  and 
should  be  suspended  until  the  contingency  does  or  does  not 
happen.     Upon  the  death  of  the  tenant  it  can  be  deter 

22c  Cases  cited  supra;  In  re  Clark  (Surr.)  5  N.  Y.  Supp.  199;  In  re 
Cager's  Will,  111  N.  Y.  343,  18  N.  B.  866;  In  re  Stewart,  131  N.  Y. 
274,  30  N.  E.  1S4.  See  In  re  Feck  (Surr.)  9  N.  Y.  Supp.  465.  But  see 
In  re  Johnson,  6  Dem.  Sur.  146;  In  re  Leavitt  (Surr.)  4  N.  Y.  Supp. 
179;    In  re  Benjamin,  N.  Y.  Daily  Reg.  Dec.  7,  18S9. 

227  Laws  1892,  c.  399,  §  11. 

228  in  re  Hoffman's  Estate,  143  N.  Y.  330,  3S  N.  E.  311;  In  re 
Roosevelt's  Estate,  143  N  Y.  120,  38  N.  E.  2S1.  See,  also,  the  re- 
marks of  the  court  in  Re  Curtis,  142  N.  Y.  223,  36  N.  E.  887. 

(255) 


§55  APPRAISER    AND    APPRAISEMENT.  [Ch.  5 

mined  to  whom  the  property  will  pass,  and  whether  or  not 
it  will  be  subject  to  the  tax.229 


§  55.     Effect  of  Appraisement  and  Appeals 
Therefrom.230 

Under  the  New  York  statute  231  every  appraiser  must  give 
notice  by  mail  to  all  persons  known  to  have  a  claim  or  in- 
terest in  the  property  to  be  appraised,  including  the  county 
treasurer  and  comptroller,232  and  to  such  persons  as  the  sur- 
rogate may  direct.  In  proceedings  for  assessment  under 
these  statutes,  infant  legatees  or  beneficiaries,  being  entitled 
to  notice,  should  be  represented  by  special  guardian.  Where 
it  is  sought  to  dispense  with  such  guardian,  proof  should  be 
introduced,  in  the  petition  for  an  appraiser,  showing  facts 
taking  the  case  outside  the  general  rule.233  Where  infants 
were  not  mentioned  in  the  petition  for  an  appraisement, 
were  served  with  no  notice  to  attend,  and  were  unrepresent- 
ed by  guardian  or  otherwise  in  the  proceeding,  these  are  ju- 
risdictional defects  which  must  be  remedied  before  any  tax 
can  be  assessed  or  fixed.234     Any  person  dissatisfied  with 

220  in  re  Clark  (Surr.)  5  N.  Y.  Snpp.  199;  In  re  Wallace  (Sum)  ^ 
N.  Y.  Supp.  465;  In  re  Matthews'  Estate,  N.  Y.  Law  J.  July  27,  1889; 
In  re  Stewart,  supra;  In  re  Curtis,  142  N.  Y.  219,  36  N.  E.  887,  affirm- 
ing 73  Hun,  185,  25  N.  Y.  Supp.  909. 

230  See,  also,  section  51,  supra,  and  chapter  8,  as  to  "remedy  and 
practice"  under  these  acts. 

231  Laws  1892,  c.  399,  §  12. 

232  a  decree  exempting  certain  corporations  made  under  the  act 
of  1887  was  held  binding  upon  the  state  in  another  proceeding,  and 
a  bar  thereto;  the  court  holding  that  state  officials  and  the  county 
treasurer,  comptroller,  or  district  attorney  were  not  required  to  be 
notified.  In  re  Wolfe,  137  N.  Y.  205,  33  N.  E.  156,  distinguished  in 
Re  Smith  (Surr.)  23  N.  Y.  Supp.  762. 

233  in  re  Lewis,  N.  Y.  Law  J.  July  21,  1892,  citing  In  re  McPher- 
son,  104  N.  Y.  306,  10  N.  E.  6S5. 

234  in  re  Hamilton,  13  N.  Y.  Law  J.  606. 
(25G) 


Ch.  5]  APPRAISER    AND    APPRAISEMENT.  §    55 

the  appraisement  or  assessment  and  determination  of  tax  238 
may  appeal  therefrom  to  the  surrogate,  within  GO  days  from 
the  fixing,  assessing,  and  determination  of  the  tax  by  the 
surrogate,  upon  filing  in  the  office  of  the  surrogate  a  writ- 
ten notice  of  appeal  which  shall  state  the  grounds  upon 
which  the  appeal  is  taken.  The  same  provisions  regarding 
appeals  are  also  contained  in  the  Illinois  statute.236  The 
hearing  before  the  surrogate  must  be  limited  to  the  errors 
alleged  in  the  notice  of  appeal;  otherwise  the  requirement 
of  the  statute  would  be  without  significance.  Where  there 
is  manifestly  no  error  alleged,  the  order  will  be  affirmed.237 
On  an  appeal  from  an  order  confirming  an  appraiser's  re- 
port the  appraiser  allowed  certain  sums  for  burial  plot,  fu- 
neral expenses,  and  attorney's  services.  The  executrix  was 
sole  devisee,  and  asked  to  be  allowed  in  addition  f  1,917  for 
erecting  a  monument  over  testator's  grave,  which  was  dis- 
allowed by  the  appraiser,  and  this  constituted  the  ground  of 
appeal.  The  testator  left  a  large  amount  of  unincumbered 
realty,  which  was  free  of  tax,  and  by  the  allowance  of  the 
sum  for  the  monument  the  personalty  of  the  deceased  would 
be  reduced  to  a  valuation  of  less  than  $10,000,  and  become 
not  taxable.  As  against  creditors,  the  court  held  that  the 
allowance  of  this  sum  would  be  excessive,  and  that,  where 
the  contest,  as  here,  was  between  the  sole  legatee  and  the 
state,  the  latter  should  be  treated  in  the  same  light  as  a 
creditor.  The  appeal  was  only  allowed  to  the  extent  of 
$1,000.238 

235  Laws  1S92,  c.  399,  §  13. 

236  Appendix,  X.,  St.  111.  1S95,  (Bradwell's  Ed.)  p.  215,  §  11. 

237  in  re  Skidmore,  13  N.  Y.  Law  J.  704. 
23  8  in  re  Sauter,  13  N.  Y.  Law  J.  1000. 

On  this  question,  rule  26  of  the  surrogate's  court  of  New  York 
county  is  as  follows:  "(1)  Upon  the  filing  of  the  appraiser's  report 
the  surrogate  will  immediately  enter  the  order  determining  the  value 
of  the  property  and  the  amount  of  the  tax.  The  matter  will  not 
appear  on  the  calendar  at  this  stage,  nor  will  the  court  then  con- 
LAW  INHER. 17  (257) 


§    55  APPRAISER    AND    APPRAISEMENT.  [Ch.   5 

An  order  confirming  the  report  of  the  appraiser  and  de- 
termining the  amount  of  the  tax,239  or  an  appraisement  of 
property,  not  appealed  from  in  the  manner  prescribed  by 
law,  becomes  final  and  conclusive  as  well  against  the  state 
as  against  the  persons  interested,240  who  had  due  and  prop- 
er notice  of  the  proceeding  resulting  in  such  appraise- 
ment,241 where  such  appraisement  has  been  made  in  good 
faith,  and  without  any  mistake,  fraud,  or  concealment  on  the 
part  of  the  appraiser,  or  of  the  persons  interested  in  the 
property.242 

Where  property  has  been  withheld  from  the  consideration 
of  the  appraiser,  whether  intentionally  or  otherwise,  and  as 

sider  objections  to  the  report.  (2)  A  party  having  objections  to  the 
report  or  the  order  entered  thereupon  may  within  60  days  file  a  no- 
tice of  appeal.  This  notice  to  be  served  upon  all  parties  appearing 
before  the  appraiser,  and  proof  of  such  service  to  be  filed  with  the 
clerk,  with  the  notice  of  appeal.  Thereupon  the  proceeding  will  be 
placed  upon  the  calendar  for  the  next  regular  motion  day.  This  no- 
tice must  specify  the  grounds  of  objection.  (3)  A  special  guardian 
will  be  appointed  to  protect  the  interest  of  infants  upon  the  return  of 
the  appraiser's  notice,  if  it  appears  that  their  rights  are  involved,  and 
they  are  not  otherwise  adequately  represented."  See  In  re  Lewis 
and  cases  supra. 

239  in  re  Miller,  110  N.  Y.  216,  18  N.  E.  139;  Id.,  5  Dem.  Sur.  119. 

240  Com.  v.  Freedley,  21  Pa.  St.  33;  Stinger  v.  Com.,  26  Pa.  St. 
422;  Strode  v.  Com.,  52  Pa.  St.  186;  In  re  Astor,  6  Dem.  Sur.  416; 
In  re  Miller,  supra;  In  re  Vanderbilt's  Estate  (Surr.)  10  N.  Y.  Supp. 
239;  In  re  Keenan's  Estate  (Suit.)  5  N.  Y.  Supp.  200;  In  re  Ferrer, 
N.  Y.  Law  J.  Jan.  30,  1892,  p.  1062;  In  re  Wolfe,  137  N.  Y.  205,  33 
N.  E.  156.  In  Pennsylvania,  it  seems,  no  appeal  can  be  sustained 
from  the  appraiser's  assessment  unless  the  record  before  him  shows 
prima  facie  error.    In  re  Goldstein's  Estate,  16  Phila.  319. 

24i  See,  also,  In  re  Vanderbilt's  Estate,  supra;  In  re  McPherson, 
104  N.  Y.  306,  10  N.  E.  685.  As  to  persons  not  notified  the  proceed- 
ings are  void.    In  re  Cockey,  8  N.  Y.  Law  J.  1507. 

242  in  re  Astor,  6  Dem.  Sur.  416;  In  re  Keenan's  Estate  (Surr.)  5 
N.  Y.  Supp.  200;  Com.  v.  Freedley,  21  Pa,  St.  33.    And  see  Attorney 
General  v.  Dardier,  11  Q.  B.  Div.  20. 
(258) 


Ch.   5]  APPRAISER    AND    APPRAISEMENT.  §    55 

to  which  the  appraiser  had  no  knowledge,  and  the  same  was 
not  appraised,  the  state  has  the  legal  right  to  institute  pro- 
ceedings for  the  recovery  of  the  tax  thereon.243  And  in 
New  York,  by  recent  statute,244  in  certain  cases  where  there 
has  been  an  appraisement  before  the  surrogate,  a  further 
appraisement  may  be  had  within  two  years  after  entry  of 
the  surrogate's  decree,  before  a  justice  of  the  supreme  court, 
where  the  state  comptroller  shows  that  the  prior  decree  was 
the  result  of  fraud,  collusion,  or  is  erroneous. 

Any  personal  estate  not  included  in  the  inventory  upon 
which  the  tax  was  assessed  is  liable  to  the  tax.245 

But  where,  pending  an  appeal  from  the  appraiser's  report, 
the  parties  liable  to  the  tax,  under  the  decree  of  the  lower 
court,  make  payment  of  it,  this  does  not  estop  the  state  from 
prosecuting  the  appeal,  and  recovering  interest  upon  the  tax 
from  the  date  of  payment.246 

And  where  the  liability  of  an  alleged  gift  to  be  taxed  was 
in  dispute,  on  which  account  the  decision  of  the  appraiser 
was  suspended,  and  he  subsequently  decided  that  it  was  lia- 
ble, the  right  of  appeal  only  runs  from  the  latter  date.247 

The  appraisement,  it  seems,  is  conclusive  as  to  the  value 
of  the  estate,  but  not  as  to  its  liability  to  taxation.248 

It  seems,  the  value  of  policies  of  insurance  at  the  time  of 
death  of  testator,  where  such  value  has  been  found  by  the 

243  in  re  Smith  (Surr.;   1893)  23  N.  Y.  Supp.  762. 
2*4  Laws  1895,  c.  556,  amending  Laws  1892,  c.  399,  §  13.     See  Ap- 
dix,  I. 

245  in  re  Russell's  Estate  (18S6)  19  Wkly.  Notes  Cas.  256. 

246  in  re  Fagely's  Estate,  128  Pa.  St.  603,  18  Atl.  3S6;  Common- 
wealth's Appeal,  47  Leg.  Int.  16. 

247  Fosselman's  Appeal,  2  Penny.  240.  See  In  re  McGeary's  Es- 
tate, 14  Pa.  Law  J.  (N.  S.)  174. 

248  Stinger  v.  Com.,  26  Pa.  St.  424;  Strode  v.  Com.,  52  Pa,  St. 
186;   Tyson  v.  State,  28  Md.  577. 

(259) 


§    55  APPRAISER    AND    APPRAISEMENT.  [Ch.    5 

appraiser  from  competent  evidence,  is  not  the  subject  of 
review  in  the  court  of  appeals.249 

The  failure  of  the  state  to  commence  proceedings  for  the 
ascertainment  and  ultimate  collection  of  the  tax  due  to  the 
fact  that  there  was  no  administration  of  decedent's  estate, 
and  thus  the  matter  was  not  brought  to  the  attention  of  the 
register,  creates  no  exception  to  the  law,  so  far  as  bona  fide 
purchasers  are  concerned,  limiting  the  right  to  commence 
such  proceedings  to  a  certain  period  of  time.250 

In  Maryland,  where  the  court  is  authorized  to  determine,, 
in  its  discretion,  the  amount  of  the  tax  against  life  tenant, 
annuitant,  and  remainder-man,  its  judgment  is,  by  statute,251 
made  final  and  conclusive;  but  this  would  seem  to  refer 
only  to  the  amount  of  the  tax  or  the  value  of  the  estate,  and 
not  to  the  question  of  liability.252 

How  often  can  an  appraisement  be  made,  and  what  is  the 
effect  of  a  subsequent  increase  in  the  value  of  the  property 
appraised,  and,  incidentally,  of  fraud,  mistake,  concealment, 
or  omission?  253  Both  the  Pennsylvania  and  the  New  York 
statutes  allow,  under  such  circumstances,  the  appointment 
of  an  appraiser  as  often  as  and  whenever  occasion  may  re- 
quire.254    In  Com.  v.  Freedley,255  an  appraisal  had  been 

249  in  re  Knoedler's  Estate  (1893)  140  N.  Y.  379,  35  N.  E.  601, 
affirming  68  Hun,  150,  22  N.  Y.  Supp.  608. 

250  Appeal  of  Mellon,  114  Pa.  St.  564,  8  Atl.  183.  And  see  James' 
Appeal,  2  Del.  Co.  Rep.  164;  In  re  Cullen's  Estate,  26  Wkly.  Notes- 
Cas.  216;    Id.,  142  Pa.  St.  18,  21  Atl.  781. 

251  Appendix,  VIII.,  §  115. 

252  Tyson  v.  State,  supra. 

253  See  proceedings  authorized  by  the  state  comptroller  in  New 
York.    Laws  1895,  Appendix  I.  e,  §  13. 

254  in  re  Smith's  Estate  (Suit.;  1893)  23  N.  Y.  Supp.  762,  distin- 
guishing In  re  Wolfe,  137  N.  Y.  205,  33  N.  E.  156.  See,  also,  In  re 
Stewart,  131  N.  Y.  274,  30  N.  E.  184. 

25521  Pa.  St.  33. 
(2G0) 


Ch.   5]  APPRAISER    AND    APPRAISEMENT.  §   55 

made  on  behalf  of  the  state,  and  the  tax  assessed  thereon. 
Subsequently  the  appraised  property  increased  greatly  in 
value,  and  the  state  sought  to  tax  this  increase.  The  opin- 
ion of  Woodward,  C.  J.5  in  deciding  against  the  claim,  would 
seem  to  be  of  general  application.  He  said: 256  "That  the 
assessment  of  the  appraiser  is  to  be  final,  if  not  appealed 
from,  is  shown  by  the  act  declaring  that  it  is  made  to  fix  the 
valuation  of  the  real  estate,  that  the  appraisement  of  a  per- 
sonal estate  is  to  be  fair  and  conscionable,  and  that  the  tax 
on  annuities  and  life  estates  is  to  be  immediately  payable 
out  of  the  estate  at  the  rate  of  such  valuation.  But  prop- 
erty subject  to  the  tax  may  be  fraudulently  concealed,  inci- 
dentally overlooked,  or  it  may  not  be  known  to  the  represent- 
atives of  the  decedent  at  the  time  of  the  appraisement,  and 
therefore  the  register  is  to  appoint  an  appraiser  'as  often  as 
and  whenever  occasion  may  require.' 257  Whenever  por- 
tions of  the  estate  come  to  light  after  the  first  appraise- 
ment, they  are  to  be  appraised  in  the  same  manner,  but  as 
to  such  portions  as  were  the  subject  of  the  appraisement  the 
'clear  value'  is  fixed,  and  the  law  assesses  the  tax.  *  *  * 
Such  is  the  system  provided  for  collateral  inheritance  taxa- 
tion, and  it  does  not  admit  of  opening  to  take  in  additions 
to  the  clear  value  of  property  once  assessed.  That  property 
is  vested  in  the  heir  or  devisee.  If  it  appreciates  after  it 
comes  to  him,  it  is  his  good  luck;  if  it  depreciates,  it  is  his 
misfortune.  But  as  the  state  would  not  submit  to  a  read- 
justment for  the  purpose  of  diminishing  her  taxes,  in  the 
event  of  subsequent  depreciation,  she  is  not  entitled  to  a 
readjustment  for  the  purpose  of  increasing  it,  by  reason  of 
an  advance  in  the  market  value  of  the  estate  after  an  assess- 
ment by  officers  of  her  own  appointment,  with  the  right  of 
appeal.258     The  commonwealth  is  as  much  subject  to  the 

256  21  Pa.  St.  36. 

257  gee  In  re  Smith,  supra. 

25 s  see  In  re  Bird's  Estate,  N.  Y.  Law  J.  July  28,  1S90. 

(2G1) 


§    55  APPRAISER    AND    APPRAISEMENT.  [Ch.   5 

rules  of  equity  and  justice  as  her  citizens.  She  possesses 
the  taxing  power,  but,  when  it  has  been  fairly  employed  ac- 
cording to  her  own  dictation,  it  is  spent  and  gone."  259 

Seemingly  in  direct  antagonism  to  Com.  v.  Freedley  is  a 
case  under  the  English  legacy  act,  but  it  turned,  in  reality, 
upon  the  construction  of  language  not  contained  in  the 
American  statute.260 

In  Attorney  General  v.  Dardier,  to  which  we  refer,281  cer- 
tain valuable  pictures  were  devised  as  a  specific  legacy.  A 
duty  had  been  accepted  by  the  crown  upon  a  low  valuation, 
apparently  made  in  good  faith,  between  the  taxing  commis- 
sioners and  the  executors.  Subsequently  the  executors  sold 
the  pictures  at  a  large  advance,  and  it  was  held  262  that  not- 
withstanding these  facts  the  crown  was  entitled  to  further 
duty  upon  the  increase,  although  there  was  no  fraud  upon 
the  part  of  the  executors.  Pollock,  B.,  treated  the  first  ap- 
praisement as  having  been  made  under  a  common  mistake 
upon  the  part  of  both  parties, — that  the  pictures  were  not 
to  be  sold, — which,  being  discovered,  entitled  the  crown  to 
duty  upon  the  actual  value  of  the  proceeds  of  the  property, 
when  sold. 

So,  where  property  was  omitted  by  mutual  mistake  from 
the  appraisement,  a  further  appraisement  was  allowed  13 
years  afterwards,  but  the  executors  were  relieved  from  pen- 
alty.263 

259  See,  also,  Coleman  v.  Com.,  52  Pa.  St.  468;  Stinger  v.  Com.,  26 
Pa.  St.  425;  In  re  Cooper's  Estate  (Appeal  of  Commonwealth)  127 
Pa.  St.  435,  17  AtL  1096.  See  In  re  Vanderbilt's  Estate  (Surr.)  10 
N.  Y.  Supp.  239;  In  re  Bird's  Estate,  supra. 

260  Attorney  General  v.  Dardier,  11  Q.  B.  Div.  16.  But  see  Attorney 
General  v.  Sefton,  11  H.  L.  Cas.  257. 

28i  11  Q.  B.  Div.  16. 

262  Under  53  Geo.  III.  c.  52,  §  22. 

263  in  re  Brewer's  Estate,  16  Pa.  Law.  J.  (N.  S.)  114,  15  Pa.  Law 
J.  (N.  S.)  435;  In  re  Fagely's  Estate  (Appeal  of  Commonwealth)  128 
Pa.  St.  613,  18  Atl.  3S6.    See  In  re  Keenan's  Estate  (Suit.)  5  N.  Y. 

(262) 


Ch.   5]  APPRAISER    AND    APPRAISEMENT.  §    55 

It  seems,  a  certified  receipt  of  the  county  treasurer  or 
comptroller  of  the  county  where  jurisdiction  was  first  ac- 
quired will  be  full  protection  to  any  subsequent  purchaser 
of  such  land,  as  against  any  claim  for  the  tax.2*54 

The  great  age  of  a  life  tenant  whose  share  is  subject  to 
taxation  affords  no  reason  for  postponing  the  confirmation 
of  the  appraiser's  report.265 

In  New  York  the  surrogate  is  not  bound  by  the  appraiser's 
report,  but  may  take  such  further  evidence  as  he  deems 
proper,  and  base  his  decision  thereon.266 

Such  report  is  not  final.  It  is  to  aid  the  surrogate  to 
decide  what  property  is  liable  to  the  tax,  and  it  is  subject 
to  confirmation,  revision,  or  rejection  by  the  surrogate.267 
And,  where  all  papers  are  not  submitted  to  the  appraiser 
before  he  makes  his  report,  the  proceeding  will  be  remitted 
to  him  to  proceed  de  novo.268 

Supp.  200;    In  re  Astor,  6  Dem.  Sur.  416;    Fosselman's  Appeal,  2 
Penny.  240. 

264  in  re  Keenan's  Estate,  supra. 

265  in  re  Wilkes'  Estate,  N.  Y.  Law  J.  Oct.  31,  18S9. 

2  66  in  re  McPberson,  104  N.  Y.  323,  10  N.  E.  685;  In  re  McGow- 
an's  Estate,  N.  Y.  Law  J.  July  30,  1890.  But  see  In  re  Vanderbilt's 
Estate  (Surr.)  10  N.  Y.  Supp.  239. 

267  in  re  McGowan's  Estate,  supra. 

26  8  in  re  Jones'  Estate,  N.  Y.  Law  J.  July  31,  1S90;  In  re  Knoed- 
ler,  N.  Y.  Law  J.  June  3,  1892;  In  re  Dreyer,  N.  Y.  Law  J.  Feb. 
17,  1892. 

(263) 


56  VESTED    AND    CONTINGENT    ESTATES.  [Ch.   6 


CHAPTER  VI. 

iVESTED  AND   CONTINGENT  ESTATES— TRANSFERS   INTER 
VIVOS  AND  CAUSA  MORTIS— POWERS  AND  LEGACIES. 

§    56.    Life  Estates,  Annuities,  Legacies,  and  Joint  Tenancies. 

57.  Relative  Rights  of  Life  Tenant  and  Remainder-Man. 

58.  Remainders,  Contingent  and  Future  Estates. 

(a)  Under  the  English  Statutes. 

(b)  Under  the  Acts  of  Congress. 

(c)  Under  New  York  Statutes  of  1885,  1887,  1892. 

(1)  Preliminary  Review  of  Early  Statutes. 

(2)  Provisions  of  Transfer  Tax  of  1S92. 

(3)  Decisions  under  These  Acts. 

(a)  Vested  Estates. 

(b)  Contingent  or  Future  Estates. 

(c)  When  not  Taxable  nor  Appraisable  at  Death. 

(d)  When  Appraisable  at  Death. 

(e)  Appraisable   and    Taxable    when    Vesting    in 

Possession  or  Enjoyment. 

(f)  Estates    Taxable    under    Retroactive    Clause, 

New  York  Act  of  1892. 

(d)  Under  Pennsylvania  Statutes. 

(e)  Massachusetts  Statutes. 

59    Fraudulent  Transfers.  Trusts,   and   Gifts   Inter  Vivos  and 
Causa  Mortis. 

60.  Powers  of  Appointment. 

61.  Legacies  for  Debts  and  Other  Obligations. 


§  56.     Life  Estates,  Annuities,  Legacies,  and  Joint 

Tenancies. 

We  have  already  considered  the  general  nature  and  con- 
stitutionality of  collateral  inheritance,  legacy,  and  succes- 
sion tax  laws,1  and  of  the  exemptions  from  taxation  under 
such  laws,2  including  questions  relating  to  the  domiciliary 

i  Chapters  1,  2.  2  Chapter  3. 

(204) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    56 

condition  either  of  person  or  property  with  respect  to  this 
tax.3  So  the  various  provisions  of  law  relating  to  the  ap- 
praisement or  valuation  of  property  under  these  statutes 
have  been  considered  in  the  preceding  chapter. 

In  the  present  chapter,  in  addition  to  the  consideration 
of  the  liability  of  both  vested  and  contingent  estates  or  re- 
mainders, it  has  also  been  deemed  proper  to  include  several 
other  important  topics,  such  as  fraudulent  or  intentional 
transfers,  trusts  and  gifts  inter  vivos  to  evade  the  tax,4 
powers  of  appointment,5  and  legacies  in  payment  of  debts 
and  other  obligations.6 

Cases  embracing  a  right  or  power  of  disposition  in  the 
life  tenant,  where  the  remainder-man  is  not  exempt,  and  in- 
volving relative  rights  of  life  tenant  and  remainder-man, 
have  likewise  been  considered  in  the  present  chapter.7 

The  general  rule  is  that  the  tax  due  by  tenant  for  life  is 
payable  immediately  when  distribution  is  or  should  be  made, 
and,  if  payment  is  delayed,  the  consequence  must  fall  on 
him,  and  not  upon  the  remainder-man.8 

So  where  there  is  a  bequest  of  a  fund  in  trust  for  one  dur- 
ing life,  with  remainder  to  others,  the  tax  is  payable  forth- 
with on  the  life  estate  out  of  accruing  income,  and  on  the 
principle  when  the  life  estate  has  fallen.9  This  is  so  both 
with  annuities  and  life  estates.10  The  tax  should  be  upon 
the  clear  value  of  the  life  estate  at  the  testator's  death,  and 

e  Chapter  4.  *  p0st,  §  59.  b  id.  §  60.  6  id.  §  61. 

t  See  section  57,  post;  In  re  Cager,  111  N.  Y.  343,  18  N.  E.  866; 
In  re  Nieman's  Estate,  131  Pa.  St.  346,  18  Atl.  900. 

8  In  re  Wharton's  Estate,  10  Wkly.  Notes  Cas.  106. 

9  In  re  Christian's  Estate,  2  Parker,  Cr.  R.  91;  In  re  Johnson,  6 
Dem.  Snr.  146;  In  re  Willing's  Estate,  2  Wkly.  Notes  Cas.  307,  308; 
In  re  Wharton's  Estate,  supra;  In  re  Thomson's  Estate,  12  Phila. 
131;  In  re  Forbes'  Estate,  16  Phila.  356;  Commonwealth's  Appeal, 
127  Pa.  St.  438,  17  Atl.  1094. 

io  In  re  Budd's  Estate  (1892)  49  Leg.  Int.  502,  12  Pa.  Co.  Ct.  R 
470,  and  2  Pa.  Dist.  R.  148. 

(2G5) 


§    5Q  VESTED    AND    CONTINGENT    ESTATES.  [Ch.  6 

not  upon  the  value  of  the  property  when  it  is  assessed.11 
An  annuity  is  an  estate  within  the  meaning  of  these  stat- 
utes.12 And  legacies  payable  out  of  income  are  annuities.13 
Annuities  granted  to  trustees  to  be  employed  by  them  while 
carrying  on  testator's  business  are  taxable  as  legacies  under 
the  English  legacy  act.14  The  word  "legacy"  will  sometimes 
be  held  to  include  real  estate.15  The  liability  of  such  annu- 
ities to  the  tax  is  not  affected  by  the  fact  that  the  income 
applied  to  their  payment  must  be  paid  out  of  and  is  likely 
to  diminish  the  principal  fund.16 

On  the  other  hand,  it  has  been  held  that,  where  the  life 
tenant  is  an  exempt  person,  there  is  no  principle  upon  which 
the  fund  in  his  hands — and  which  he  has  the  right  to  enjoy 
intact — can  be  appropriated  for  the  purpose  of  paying  a  tax 
upon  contingent  annuities  before  the  death  of  the  life  ten- 
ant,17 unless  expressly  directed  by  will; 18  as  where  the  gift 
was  of  a  net  annual  sum  of  $1,200,  and  its  payment  was  di- 
rected to  be  made  quarterly  in  sums  of  $300,  with  reserva- 
tion of  a  principal  sum  out  of  the  investments  of  the  dece- 

11  U.  S.  v.  New  York  Life  Ins.  &  Trust  Co.,  9  Ben.  413,  Fed.  Cas. 
No.  15,873;  In  re  Leavitt's  Estate  (Surr.)  4  N.  Y.  Supp.  179;  In  re 
Vassar,  127  N.  Y.  8,  27  N.  E.  394.     Supra,  c.  4,  §  49. 

12  In  re  Bispham's  Estate,  46  Leg.  Int.  98;  In  re  Thomson's  Es- 
tate, 5  Wkly.  Notes  Cas.  19. 

is  In  re  Williamson's  Estate,  143  Pa.  St.  150,  22  Atl.  836. 

14  Thorley  v.  Massam  [1891]  2  Ch.  Div.  613. 

is  In  re  Miller,  7  N.  Y.  Law  J.  308. 

is  In  re  Leavitt's  Estate,  supra;  In  re  Johnson,  6  Dem.  Sur.  146; 
In  re  Van  Beuren,  N.  Y.  Law  J.  March  26,  1891,  p.  1600. 

it  In  re  Clark  (Surr.)  5  N.  Y.  Supp.  199;  In  re  Hopkins,  6  Dem. 
Sur.  1.  See  In  re  Peck  (Surr.)  9  N.  Y.  Supp.  465,  24  Abb.  N.  C.  365. 
note.  See,  also,  In  re  Christian's  Estate,  2  Pa.  Co.  Ct.  R.  91,  and 
cases  cited  supra. 

is  See  cases  post,  §  61.     But  see  In  re  Spies,  N.  Y.  Law  J.  July 
21,  1892,  citing  In  re  Swift's  Estate  (Suit.)  16  N.  Y.  Supp.  193;    Id. 
(Sup.)  19  N.  Y.  Supp.  292;   Id.,  reversed  on  another  point,  137  N.  Y. 
77,  32  N.  E.  1010. 
(266) 


Ch.   6]  VESTED    AND    CONTINGENT   ESTATES.  §    56 

dent's  estate  ample  to  yield  a  net  income  of  $1,200  per  an- 
num, the  tax  falls  upon  the  residue  and  not  upon  the  annu- 
itant.19 In  Massachusetts  the  tax  on  annuities  is  to  be 
paid  out  of  the  annuity  as  soon  as  the  annuity  becomes  pay- 
able, and  at  the  time  when  payments  on  account  of  the  an- 
nuity are  made,  though  the  effect  may  be  that  the  first  pay- 
ments will  be  exhausted  by  the  tax.20  So  where  decedent 
bequeathed  one-fourth  of  his  estate,  to  invest  the  same  and 
to  pay  to  M.  the  sum  of  $300  per  annum  till  the  fund  be  ex- 
hausted, if  she  so  long  live,  this  was  held  not  to  be  an  an- 
nuity, but  a  legacy  payable  in  annual  installments,  and,  the 
remainder  being  to  lineal  heirs,  the  tax  was  only  due  on 
each  payment  as  made,  and  not  upon  the  entire  fund.21  In 
one  case  it  was  held  that  the  decree  should  provide  for  the 
retention  of  a  sum  the  income  of  which  at  the  rate  of  4  per 
cent,  per  annum  would  be  sufficient  to  defray  the  amount  of 
the  tax.22  Again  it  has  been  held  23  that  after  the  property 
has  been  assessed,  and  the  tax  fixed,  it  is  no  concern  of  the 
court  as  to  whether,  under  the  will,  the  tax  shall  be  paid 
by  the  annuitants  or  shall  fall  upon  the  residuary  estate.  It 
is  no  concern  of  the  state  that  the  testator  may  have  direct- 
ed a  particular  fund  out  of  which  the  tax  shall  be  paid. 
The  testator  cannot  compel  the  state  to  look  for  the  tax  to 
others  than  the  legatee  or  fund  taxable  under  the  act.24 

In  England,  where  the  duty  is  chargeable  by  will  upon  the 
residuary  estate,  and  the  legacies  are  relieved  therefrom, 
and  the  residuary  estate  proves  insufficient  to  pay  the  same, 

is  Bispham's  Estate,  46  Leg.  Int.  98;  In  re  Van  Beuren,  4  N.  Y. 
Law  J.  (March  26,  1891)  p.  1600. 

20  Minot  v.  Winthrop  (1894)  162  Mass.  116,  3S  N.  E.  512. 

si  In  re  Crompton's  Estate  (1891)  48  Leg.  Int.  452,  10  Pa.  Co.  Ct. 
R.  443,  and  29  Wkly.  Notes  Cas.  36. 

22  In  re  Van  Benren,  supra. 

23  in  re  Spies  and  cases  cited,  supra. 

24  in  re  Swift,  137  N.  Y.  77,  32  N.  E.  1096. 

(267) 


§   56  VESTED   AND   CONTINGENT    ESTATES.  [Ch.  6 

the  legatees  must  pay  duty  to  the  extent  to  which  the  gen- 
eral estate  is  insufficient  to  pay  the  same.25 

Under  the  New  York  statute  it  has  been  held  that,  where 
it  is  impossible  to  ascertain  the  person  to  whom  such  annu- 
ities will  be  payable  until  the  death  of  the  life  tenant,  they 
are  not  taxable  until  such  death.26 

In  Re  Roosevelt's  Estate,27  decedent,  who  died  in  1887,  gave 
his  residuary  estate  to  his  executors,  in  trust  to  pay  the  in- 
come thereof  to  his  wife  during  her  life.  Upon  her  death  said 
estate  was  given  to  beneficiaries  named,  subject  to  the  pay- 
ment of  certain  annuities  specified,  each  given  for  the  life 
of  the  annuitant;  and  it  was  held  that  neither  the  annuities 
nor  the  remainders  were  presently  taxable  under  the  act  of 
1887;  that  as  to  the  annuitants  they  had  no  vested  interest, 
and  could  take  none  until  the  death  of  the  wife,  and  as  to 
the  remainders  there  was  a  contingency  affecting  them 
which  rendered  it  impossible  to  ascertain  their  present  fair 
and  clear  market  value.  Bartlett,  J.,  said:  "It  does  not 
follow  because  the  legislature  taxes  persons  beneficially  en- 
titled to  property  or  income,  in  possession  or  expectancy, 
that  a  tax  was  thereby  imposed  upon  an  interest  that  may 
never  vest.  Until  that  time  the  power  to  tax  does  not  ex- 
ist. The  testator  has  created  seven  life  annuities  if  the  an- 
nuitants survive  his  wife,  and  there  can  be  no  vested  inter- 
est in  any  of  them  until  the  happening  of  that  event.  All 
may  survive,  a  portion  may  be  living,  every  one  may  be  dead. 
To  hold  such  a  possibility  presently  taxable,  and  its  value 
capable  of  immediate  computation,  shocks  the  sense  of  jus- 
tice."    The  value  of  a  bequest  to  testator's  widow  for  life, 

2  5  Wilson  v.  O'Leary,  L.  R.  17  Eq.  419. 

26  in  re  Clark's  Estate  (Surr.)  5  N.  Y.  Supp.  199.  See  In  re  Curtis, 
142  N.  Y.  219,  36  N.  E.  887,  affirming  73  Hun,  185,  25  N.  Y.  Supp.  909; 
In  re  Roosevelt's  Estate,  143  N.  Y.  120,  38  N.  E.  281;  In  re  Hoffman's 
Estate,  143  N.  Y.  327,  38  N.  E.  311;   and  cases  post,  §  58,  subds.  c,  3c. 

27  Supra. 
(268) 


Ch.   6]  VESTED   AND   CONTINGENT    ESTATES.  §    56 

or  until  she  marries  again,  cannot  be  determined,  for  the  pur- 
pose of  taxation,  until  the  termination  of  the  widow's  estate, 
either  by  death  or  marriage.28 

So  it  has  been  held  that  the  interest  of  a  wife  in  real  es- 
tate devised  to  herself  and  husband  as  tenants  by  the  en- 
tirety is  taxable  during  the  husband's  lifetime,  as  her  inter- 
est is  vested  and  certain,  and  she  may,  by  statute,29  compel 
partition  of  the  property.30  The  statute  has  been  construed 
at  law,  however,  as  only  allowing  the  wife  to  claim  partition 
where  the  husband  agrees  thereto.31  But  the  estate  of  the 
wife,  as  tenant  by  the  entirety,  being  in  the  nature  of  a 
vested  remainder,  which  she  could  not  be  deprived  of  by  any 
act  of  her  husband,  would  seem  to  be  a  taxable  interest  un- 
der the  statute,  notwithstanding  her  husband  should  refuse 
to  join  in  partition  proceedings. 

In  England  the  liability  of  joint  tenants  for  this  tax  is 
specially  regulated  by  statute.32  Where  an  annuity  is  given 
by  a  testator's  will  to  a  daughter  for  life,  with  a  provision 
that  if  the  daughter  die  before  her  youngest  child  shall  have 
arrived  at  legal  age  said  annuity  is  to  be  paid  to  the  daugh- 
ter's husband,  "or  the  guardian  that  may  be  of  said  chil- 
dren," said  legacy,  being  evidently  given  to  the  husband  for 
the  use  of  his  children,  is  not  liable  to  collateral  tax.33 

zs  in  re  Mill  ward's  Estate  (Surr.)  27  N.  Y.  Supp.  2S6. 

2  9  Laws  N.  Y.  1SS0,  c.  472. 

so  in  re  Higgins'  Estate,  36  N.  Y.  Daily  Reg.  906;  distinguishing 
In  re  Le  Fever,  6  Dem.  Sur.  154,  and  In  re  Hopkins,  6  Dem.  Sur.  1. 
and  citing  In  re  Willing's  Estate,  supra. 

si  O'Connor  v.  McMahon,  54  Hun,  66,  7  N.  Y.  Supp.  225.  See,  also, 
Stelz  v.  Scbreck  (Sup.)  10  N.  Y.  Supp.  790;  Beach  v.  Hollister,  3 
Hun,  519;   Newell  v.  Newell,  7  Ch.  App.  253. 

32  36  Geo.  III.  c.  52,  §  15;  16  &  17  Vict.  c.  51,  §  3.  See  chapter  I, 
§  4,  note  42. 

■33  in  re  Morris'  Estate  (1892)  49  Leg.  Int.  424,  1  Pa,  Dist.  Rep. 
818. 

(269) 


§    57  VESTED   AND   CONTINGENT    ESTATES.  ["Ch.   6 

§  57.     Relative  Rights  of  Life  Tenant  and 
Remainder-Man. 

The  estate  of  tenant  for  life  and  that  of  remainder-man 
are  to  be  considered  distinct  and  separate,  and  neither  is 
to  be  affected  by  the  tax,  interest,  or  penalty  to  be  paid  by 
the  other.34  Hence  tenant  for  life  is  entitled  to  the  enjoy- 
ment of  the  entire  estate  while  he  lives,  he  paying  only  the 
tax  assessed  upon  the  value  of  such  estate;  while  tenant  in 
remainder,  when  he  shall  come  into  the  possession  and  en- 
joyment, is  entitled  to  it  without  other  deduction  than  the 
tax  paid  by  himself,  and  such  interest  as  may  have  accrued 
thereon.  The  tax  upon  the  tenant  for  life  being  chargeable, 
as  we  have  seen,  out  of  the  income  belonging  to  him,  and 
that  of  the  remainder-man  out  of  the  valuation  of  his  re- 
mainder.35 Hence,  on  a  bequest  of  a  fund  in  trust  for  one 
during  life,  with  remainder  to  others,  the  tax  is  payable  on 
the  life  estate  forthwith  out  of  accruing  income,  and  on  the 
principal  when  the  life  estate  has  fallen.36  Where  legacies 
are  made  a  charge  upon  realty  which  is  devised  in  trust  for 
life  to  another,  the  tax  upon  the  legacies  is  not  postponed 
to  the  termination  of  the  trust  estate,  but  they  are  payable 
at  decedent's  death.37 

Where  the  interest  of  the  life  beneficiary  is  not  taxable, 

s*  Commonwealth's  Appeal  (Cooper's  Estate)  127  Pa.  St.  438,  17 
Atl.  1095. 

35  in  re  Wharton's  Estate,  10  Wkly.  Notes  Cas.  105,  14  Phila.  279; 
In  re  Forbes'  Estate,  16  Phila.  356;  Commonwealth's  Appeal  (Coop- 
er's Estate),  supra;  In  re  Thomson's  Estate,  12  Phila.  131;  In  re 
Christian's  Estate,  2  Pa.  Co.  Ct.  R.  91;  In  re  Johnson,  6  Dem.  Sur. 
146;  In  re  Leavitt's  Estate  (Surr.)  4  N.  Y.  Supp.  179;  In  re  Clark 
(Surr.)  5  N.  Y.  Supp.  199. 

se  in  re  Christian's  Estate,  supra;    In  re  Johnson,  supra. 

«7  in  re  Wright,  6  N.  Y.  Law  J.  p.  317. 
(270) 


•Ch.  6]  VESTED   AND   CONTINGENT    ESTATES.  §    57 

and  that  of  the  remainder-man  is,  it  has  been  held  in  New 
York  that  the  amount  of  the  remainder-man's  tax  is  lawfully 
payable  out  of  the  principal  notwithstanding  the  tax  on  the 
remainder  will  reduce  the  capital,  and  so  affect  the  income 
of  the  life  tenant.38  But  the  authorities  upon  this  point  in 
that  state  are  not  harmonious.39  And,  in  view  of  the  ad- 
judications in  Pennsylvania,  the  rule  by  which  the  exempt 
life  tenant's  interest  is  impaired  for  the  purpose  of  impos- 
ing a  tax  upon  the  remainder-man  would  seem  to  be  of 
doubtful  propriety.  It  has  been  questioned  and  dissented 
from.40  Under  the  Pennsylvania  statute  it  is  held  that  even 
where  both  tenant  for  life  and  the  remainder-man  are  tax- 
able, the  only  tax  demandable  upon  decedent's  death  is  that 
upon  the  outstanding  life  estate,  to  be  paid  by  the  life  ten- 
ant alone  or  charged  against  her  income;  and  it  is  optional 
whether  tenant  in  remainder  pays  the  tax  in  anticipation 
of  his  estate  accruing  or  at  the  time  it  actually  comes  into 
possession.41  Whether  tenant  in  remainder  will  avail  him- 
self of  the  privilege  of  anticipating  payment  is  a  matter 
which  he  alone,  or  his  trustees  for  him,  should  determine.42 
Where  the  life  estate  is  not  ended,  the  tax  on  remainder  is 
not  demandable,  and  no  assessment  should  be  made.43  Where 
tenant  for  life  is  exempt,  the  whole  tax  is  payable  by  tenant 

3  8  In  re  Johnson,  supra;  In  re  Leavitt's  Estate,  supra.  See  In  re 
Peck  (Surr.)  9  N.  Y.  Supp.  4G5,  and  note  to  24  Abb.  N.  C.  365. 

39  See  contra,  In  re  Hopkins,  6  Dem.  Sur.  1;  In  re  Clark,  supra; 
In  re  Peck's  Estate,  supra. 

40  in  re  Cockey,  8  N.  Y.  Law  J.  1507. 

4i  In  re  Wharton's  Estate,  supra;  In  re  Willing's  Estate,  2  Wkly. 
Notes  Cas.  307,  308. 

42  id. 

43  in  re  Butler's  Estate  (1894)  14  Pa.  Co.  Ct.  R.  667.  But  by  act 
of  1887  (Appendix,  III.  §  2)  the  appraisement  seems  also  to  be  now 
postponed.  See  chapter  5,  §  54,  subd.  c.  See  In  re  Budd's  Estate 
(1892)  49  Leg.  Int.  502,  where  it  is  held  that  life  estates  and  annuities 
subject  to  the  tax  are  to  be  appraised  and  the  tax  paid  at  once. 

(271) 


§   57  VESTED    AND    CONTINGENT    ESTATES.  [Ch.   & 

in  remainder,  and  in  such  case  the  time  of  payment  merely 
is  postponed  until  the  estate  comes  into  actual  possession.44 
If  he  elect  to  pay  at  the  death  of  the  decedent,  the  tax  is  as- 
sessable at  the  time  of  payment  on  the  then  valuation  of  the 
entire  estate,  less  the  value  of  the  life  estate  or  term  of 
years;45  the  cases  in  connection  with  which  subject  have 
been  considered  in  the  chapter  on  "Appraisement."  48  Tax 
upon  a  legacy  subject  to  a  life  estate  is  not  payable  until 
the  termination  of  the  life  estate,  provided  that  security  for 
its  payment  at  that  time  be  duly  entered;  the  right  to  pay 
the  tax  by  way  of  anticipation  at  a  valuation  then  to  be  made 
being  also  given.47  Where  the  will  vests  in  the  devisee  an 
estate  in  fee,  it  cannot  be  taken  away  by  a  subsequent  clause 
limiting  the  estate  to  a  life  estate,  under  the  rule  that  the 
lesser  estate  must  give  way  to  the  general  intent  giving  a 
greater  estate  in  clear  terms;  hence  the  devisee  is  liable  to 
pay  a  tax  upon  an  estate  in  fee.48 

The  statute  of  Massachusetts  49  provides  that  the  present 
worth  of  a  remainder  must  be  ascertained  by  deducting  the 
value  of  the  life  estate  from  the  appraised  value  of  the  prop- 
erty, and  that  the  value  of  the  life  estate  is  to  be  determined 
by  actuaries'  tables.  Under  these  provisions,  where  a  wife 
left  to  her  husband  a  life  estate  in  $10,000,  not  taxable,  at 
his  decease  to  go  to  E.,  the  tax  upon  the  remainder  must  be 
computed  and  deducted  from  the  principal  sum;  and,  al- 
thought  the  tenant  for  life  will  have  lost  the  income  on  the 

44  in  re  Wharton's  Estate,  10  Wkly.  Notes  Gas.  105;  In  re  Willing's 
Estate,  2  Wkly.  Notes  Cas.  307,  308. 

45  Cooper's  Estate  (Appeal  of  Commonwealth)  127  Pa.  St.  435,  17 
Atl.  1005;  affirming  Cooper  v.  Com.,  5  Pa.  Co.  Ct.  R.  275;  Appeal  of 
Mellon,  114  Pa.  St.  572,  8  Atl.  183. 

4  6  Chapter  5,  §  54,  subd.  c. 

4T  in  re  Budd's  Estate  (1892)  49  Leg.  Int.  502,  12  Pa.  Co.  Ct.  R. 
47G,  and  2  Pa.  Dist.  Rep.  148. 
4  8  Sprankle  v.  Com.,  2  Walk.  (Pa.)  420. 
49  See  Appendix,  IV.,  Laws  1891,  c.  425,  §§  2,  13. 
(272) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

amount  so  deducted,  such  a  loss  must  be  borne  by  legatee 
in  remainder.50 


§  58.     Remainders,  Contingent  and  Future  Estates. 

(a)  Under  the  English  Statutes. 

Under  the  perfect  system  of  the  English  law,  all  inter- 
ests, vested  and  contingent,  and  whether  passing  by  will, 
intestate  law,  or  by  deed  inter  vivos,  gift  causa  mortis,  or 
otherwise,  are  at  some  time  made  subject  to  taxation  under 
these  statutes.  Layton  says:51  "To  whatever  medium  a 
person  may  resort — will,  deed,  bond,  etc. — for  the  disposi- 
tion of  his  real  and  personal  estate  on  his  death,  such  prop- 
erty is  now  chargeable  with  duty;  nor  does  the  nature  of 
the  instrument  in  the  least  affect  the  payment  of  the  tax. 
The  provisions  are  of  a  most  comprehensive  and  searching 
character,  so  much  so  that  it  is  difficult  to  imagine  a  trans- 
action or  dealing  with  property  to  take  effect  upon  a  death 
after  the  19th  of  May,  1853,  that  will  elude  its  operation, 
general  or  special.52 

The  duties  are  to  be  paid  on  the  successor,  or  any  person 
in  his  right  or  on  his  behalf,  becoming  entitled  in  posses- 
sion,53 unless  the  title  to  the  succession  is  accelerated  by 
the  extinction  or  surrender  of  any  prior  interest,  in  which 
case  the  duty  is  to  be  paid  at  the  same  time  and  in  the 
same  manner  as  if  no  acceleration  had  taken  place.54 

so  Minot  v.  Winthrop  (1S94)  162  Mass.  113,  38  N.  E.  512.  Contra, 
In  re  Wharton's  Estate,  10  Wkly.  Notes  Cas.  106. 

si  Legacy  and  Succession  Taxes  (9th  Ed.),  London,  1892,  110,  111, 
122,  et  seq. 

52  See,  as  to  contingent  interests,  36  Geo.  III.  c.  52,  §  17;  16  & 
17  Vict.  c.  51,  §§  2,  20,  35.  See,  also,  cases  cited  post,  §  58,  subd.  3f. 
as  to  retroactive  statutes. 

53  16  &  17  Vict.  §  20. 

54  16  &  17  Vict.  §  15;  Trev.  Tax.  Sue.  (4th  Ed.)  189.  See  Lord 
Adv.    v.   McDonald,    24   Sc.   Sess.    Cas.    (2d   Ser.)   §    1175;     Attoruey 

LAW  INHEK. — 18  (273) 


§   58  VESTED    AND    CONTINGENT    ESTATES.  [Ch.   6 

So,  in  estimating  the  value  of  a  succession,  no  allowance 
shall  be  made  in  respect  of  any  contingency  upon  the  hap- 
pening of  which  the  property  may  pass  to  some  other  per- 
son; but,  in  the  event  of  the  same  so  passing,  the  successor 
shall  be  entitled  to  a  return  of  so  much  of  the  duty  paid 
by  him  as  will  reduce  the  sum  to  the  amount  which  would 
have  been  payable  by  him  if  such  duty  had  been  assessed 
in  respect  of  the  actual  duration  or  extent  of  his  interests.55 

(b)  Under  Acts  of  Congress. 

Under  the  acts  of  congress 56  in  force  until  the  year 
1870,  the  tax  was  only  due  and  payable  upon  such  interests 
in  remainder  when  the  beneficiary  became  entitled  to  the 
possession  and  enjoyment  of  the  estate,  or  to  the  benefi- 
cial interest  in  the  profits  arising  therefrom;  hence  it  was 
held  that  estates  in  remainder  were  not  taxable  until  the 
successor  became  entitled  to  the  possession  or  enjoyment 
or  the  expectancy  terminated,  and  legacies  which  did  not 
vest  in  possession  or  enjoyment  until  after  the  act  was  re- 
pealed were  not  liable.57 

Under  these  acts  58  a  succession  was  defined  to  denote  the 
devolution  of  the  title  of  any  real  estate,  hence  it  was  con- 
ferred where  the  following  conditions  occurred:  A  past 
disposition  of  real  estate  by  will,  deed,  or  the  laws  of  de- 
scent, by  reason  of  which  the  person  taxed  became  benefi- 

General  v.  Middleton,  3  Hurl.  &  N.  125;  Wilcox  v.  Smith,  4  Drew. 
40;  26  LfAv  .T.  Ch.  596.  The  executor  is  allowed  to  commute  duties 
upon  contingent  interests  under  43  Vict.  c.  14,  §§  10.  11. 

ss  16  &  17  Vict.  c.  51,  §  36;   36  Geo.  III.  c.  52,  §  17. 

5  6  13  Stat.  287,  §§  125,  126;  16  Stat.  256,  §  127.  See  Rev.  St.  U. 
8.  (2d  Ed.;   1878)  §§  3438,  3439;   chapter  1,  §  5,  notes  44,  45. 

5  7  Wright  v.  Blakeslee,  101  U.  S.  174;  Clapp  v.  Mason,  94  U.  S. 
589;  Mason  v.  Sargent,  104  U.  S.  689;  U.  S.  v.  Hazard,  8  Fed.  380; 
U.  S.  v.  Bruce,  Id.  381.     And  see  chapter  5,  §  54,  subd.  a. 

5  8  Act  June  30,  1864,  c.  126;    13  Stat.  287,  §§  125,  126;    16  Stat. 
256,  §  127. 
(274) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

dally  entitled,  in  possession  or  expectancy,  to  the  real 
estate  or  income  thereof,  and  by  which  the  person  so  tak- 
ing became  so  entitled  upon  the  death  of  the  person  mak- 
ing such  disposition,  and  that  the  grantor  died  after  the 
passage  of  the  imposing  act.59 

Hence,  where  an  estate  for  the  life  of  another  was  given 
to  trustees  with  a  remainder  in  fee  to  the  children  of  such 
life  tenant  surviving  her,  a  succession  was  created  under 
these  acts,  and  the  tax  was  due  and  payable  at  her  death.60 

A  succession  tax  was,  however,  imposed  where  the  life 
tenant  accelerated  the  succession  by  an  amicable  agree- 
ment dividing  the  estate  between  herself  and  the  remaiuder- 
man.61 

(c)  Under  New  York  Statutes  of  1885,  1887,  1892. 

(1)  Preliminary  Review  of  Early  Statutes. 

The  original  New  York  statute,  passed  in  1885,e*  as 
amended  in  1887,  subjected  to  the  tax  all  property,  in  trust 
or  otherwise,  by  the  devolution  of  which  any  person  or 
body  politic  should  become  beneficially  entitled,  in  posses- 
sion or  expectancy,  upon  the  testator's  or  grantor's  death, 
and  where  any  devolution  63  should  be  an  estate,  income, 
or  interest,  for  a  term  of  years  or  for  life,  or  determinable 

69  Blake  v.  McCartney,  4  Cliff.  101,  Fed.  Cas.  No.  1,498;  Wright 
v.  Blakeslee,  supra. 

eo  Wright  v.  Blakeslee,  supra. 

siBrune  v.  Smith,  13  Int.  Rev.  Rec.  54.  Fed.  Cas.  No.  2,053;  Ex 
parte  Stitwell,  59  Law  T.  R.  539.  But  see  Page  v.  Rives,  1  Hughes, 
297,  Fed.  Cas.  No.  10,660. 

6  2  Laws  1885,  c.  483.  See  Appendix.  I.,  Laws  1S87.  c.  713:  Laws 
1892,  e.  399.  See  note  on  "Contingent  Remainders,"  by  Austin  Ab- 
bott, Esq.,  19  Abb.  N.  C.  234;  24  Abb.  N.  C.  365;  note  on  "Vested 
Estates,"  18  Abb.  N.  C.  300;  Talmadge  v.  Seaman,  85  Hun,  242,  32  N. 
Y.  Supp.  906,  reversed  as  In  re  Seaman  (Oct.  8,  1895;  Ct.  App.) 
41  N.  E.  401;  In  re  Curtis,  142  N.  Y.  219,  36  N.  E.  887. 

63  Laws  1887,  §  2. 

(275) 


§    58  VESTED    AND    CONTINGENT   ESTATES.  [Ch.   6 

upon  any  future  or  contingent  event,  or  should  be  a  re- 
mainder, reversion,  or  other  expectancy,  real  or  personal, 
it  was  to  be  appraised  immediately  after  the  decedent's 
death,  at  its  fair  and  clear  market  value  at  the  time  of 
death,  and  its  value  determined  by  the  surrogate,64  and 
the  tax  thereon  was  immediately  due  and  payable.  It 
was  also  provided  that  the  persons  beneficially  interested 
in  the  property  chargeable  with  said  tax  might  elect  not 
to  pay  the  same  until  they  should  come  into  the  actual 
possession  or  enjoyment  of  such  property,  in  which  case 
they  were  to  file  a  bond,  to  be  given  to  the  people  of  the 
state,  in  a  penalty  of  three  times  the  amount  of  the  tax, 
arising  upon  personal  estate,  conditioned  for  the  payment 
of  the  tax  and  interest  at  such  time  or  period  as  they  or 
their  representatives  should  come  into  the  actual  posses- 
sion and  enjoyment  of  such  property. 

These  acts,  and  especially  that  of  1885,  were  early  criti- 
cised as  being  imperfect  and  impracticable  of  enforcement 
in  many  instances,  and  especially  with  respect  to  the  tax- 
ation of  contingent  remainders  or  future  estates,65  while 
its  provisions,  as  borrowed  from  the  early  statutes  of  Penn- 
sylvania, have  been  characterized  as  harsh  and  oppress- 
ive. These  strictures  have,  to  a  limited  extent,  proved 
to  be  just,  but  the  practical  workings  of  the  statutes,  gen- 
erally, have  shown  better  results  in  the  state  of  New  York 
for  this  system  of  taxation  than  were  at  first  anticipated 
or  hoped  for;  and,  as  the  court  of  appeals  said,  its  provi- 
sions have  been  found  comprehensive  enough  to  embrace 
all  estates  in  possession  or  expectancy,  gifts  of  the  corpus 
or  of  the  income,  and  estates  in  trust;  and  the  obvious 
intent  of  the  legislature,  it  is  said,  was  to  impose  a  tax 

e*  Prior  to  1887  the  Northampton  Tables  were  followed.    See  In 
re  Robertson,  5  Dem.  Sur.  92. 

es  See  In  re  MePherson,  164  N.  Y.  324,  10  N.  E.  GS5;    In  re  Cager. 
Ill  N.  Y.  350.  18  N.  E.  86G. 
(27G) 


Ch.  6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

on  every  interest,  immediate  or  future,  derived  under  a 
testator  or  intestate.66 

This  was  true,  but  by  this  language  the  court  did  not 
mean  that  all  future  or  contingent  estates  or  interests 
whatever,  where  the  vesting  or  taxability  was  uncertain, 
were  to  be  taxed  at  decedent's  death,  but  such  seems  to 
have  been  the  impression.67 

And,  in  pursuance  of  this  declaration,  attempts  were 
made  under  these  early  acts  to  assess  and  tax,  as  of  the 
time  of  death,  not  only  vested  estates,  interests,  or  re- 
mainders, but  also  to  assess  and  tax,  as  of  the  same  time, 
contingent  or  future  interests  devised  to  collateral  heirs, 
in  which  there  was  only  the  barest  possible  chance  or  op- 
portunity of  the  estate  ever  vesting  in  the  beneficiaries, 

ee  in  re  Stewart  (1892)  131  N.  Y.  281.  30  N.  E.  184.  See,  also,  In 
re  Hoffman's  Estate,  143  N.  Y.  334,  38  N.  E.  311.  The  language  of 
the  act  of  1892  (chapter  399)  is  also  very  broad.  See  section  22,  Ap- 
pendix;   In  re  Cunningham,  7  N.  Y    Law  J.  9o4. 

6  7  See  In  re  Curtis,  142  N.  Y.  223,  36  N.  E.  887,  where  the  court, 
In  distinguishing  the  Stewart  Case,  said:  "The  opinion  in  that  [Stew- 
art] case  cannot  be  held  in  any  respect  to  justify  such  a  construc- 
tion. It  does  decide  that  contingent  interests,  although  vesting  in 
possession  at  a  future  day,  may  be  at  once  valued  and  assessed, 
and  that  such  interests  vesting  in  no  specific  beneficiary  when  the 
will  takes  effect  cannot  then  be  taxed,  but  come  under  the  opera- 
tion of  the  law,  when  the  event  which  locates  and  fixes  them  occurs. 
It  may  possibly  be  that,  where  the  only  contingency  of  the  future  is 
upon  which  of  several  named  persons  or  classes  of  persons,  all  of 
whom  are  liable  to  suffer  the  taxation,  the  beneficial  interests  will 
ultimately  devolve,  the  appraisement  and  assessment  need  not  be 
postponed,  though  even  that  is  hardly  a  prudent  construction,  but 
need  not  now  be  discussed;  yet  when  the  contingency  touches  the 
taxable  character  of  the  succession,  where  it  is  only  in  the  chance 
of  uncertain  events  that  the  beneficial  interests  will  finally  alight 
where  they  will  be  taxable  at  all,  a  delay  until  the  contingency  is 
solved  is  both  just  and  necessary."  See,  also,  Talmadge  v.  Seaman, 
85  Hun,  242,  32  N.  Y.  Supp.  906,  reversed  as  In  re  Seaman  (Oct.  8, 
TS95;   Ct.  App.)  41  N.  E.  401. 

(277) 


§    58  VESTED    AND    CONTINGENT    ESTATES.  [Ch.   6 

and  where  it  was  impossible  to  determine,  at  decedent's 
death,  in  whom  such  estates  would  vest,  whether  in  taxa- 
ble or  nontaxable  persons,  heirs  or  legatees.68  Speak- 
ing particularly  of  estates  of  this  nature,  before  these  acts 
with  reference  to  this  question  were  very  well  understood 
in  New  York,  we  said,  in  our  first  edition,09  that  it  would 
seem  to  be  just  that  both  the  assessment  and  payment  of 
the  tax  upon  such  estate  should  only  take  place  when 
such  estates  vested  in  possession,  giving  the  remainder- 
man the  right,  however,  if  he  so  elected,  of  anticipating 
payment.  This  practice  of  attempting  to  tax  such  estates, 
as  of  the  time  of  death,  under  the  early  acts,  was  finally 
promptly  condemned  in  most  positive  language  by  the 
judges,  when  the  question  was  definitely  presented  to  the 
court  of  appeals,  in  Be  Curtis,70  and  a  delay  until  the  con- 
tingency was  solved  was  said  to  be  both  just  and  neces- 
sary, when  the  proper  assessment  could  be  made  and  col- 
lected. Finch,  J.,  said,  substantially,  that  the  attempt  to 
tax  such  estates  was  "too  unjust  to  be  borne."  This  rul- 
ing was  followed  in  later  cases  by  the  same  court  71  in  con- 
struing these  acts;  and  also  under  the  act  of  1892,72  Bart- 
lett,  J.,  declaring  73  that  it  "shocks  the  sense  of  justice." 

6s  See  the  following  eases  of  this  character  in  the  lower  courts: 
In  re  Cunningham,  supra;  In  re  Curtis,  G  N.  Y.  Law  J.  1514,  citing 
In  re  Stewart,  supra;  In  re  Ferrer,  6  N.  Y.  Law  J.  1062;  In  re  Stan- 
ford, 9  N.  Y.  Law  J.  327;  In  re  Hoffman's  Estate,  5  Misc.  Rep.  439, 
26  N.  Y.  Supp.  S88,  reversed  in  76  Hun,  399,  27  N.  Y.  Supp.  1086, 
and  143  N.  Y.  333,  38  N.  E.  311. 

6  9  September,  1890,  p.  160. 

to  142  N.  Y.  223,  36  N.  E.  887;  affirming  73  Hun,  1S5,  2o  N.  Y. 
Supp.  909. 

7i  In  re  Roosevelt's  Estate,  143  N.  Y.  120,  38  N.  E.  2S1;  In  re 
Hoffman's  Estate,  143  N.  Y.  334,  38  N.  E.  311. 

72  Laws  1892,  c.  399. 

73  in  re  Roosevelt's  Estate,  supra. 
(278) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 


(2)  Provisions  of  Transfer  Tax  of  1892. 

Under  this  statute,  entitled  "An  act  in  relation  to  taxa- 
ble transfers  of  property,"  as  construed  by  the  court  of 
appeals,74  it  would  now  seem  that  both  the  assessment 
and  taxation  of  contingent  or  future  estates  and  interests 
cannot  be  made  at  decedent's  death,  but  is  now  adjourned 
until  such  estates  or  interests  vest  in  the  actual  posses- 
sion or  enjoyment  of  the  beneficiary. 

This  is  substantially  the  effect  of  the  provisions  of  the 
act  of  1892.75 

That  statute  provides  that  "if  the  property  upon  the 
transfer  of  which  a  tax  is  imposed  shall  be  an  estate,  in- 
come or  interest  for  a  term  of  years,  or  for  life,  or  deter- 
minable upon  any  future  or  contingent  estate,  or  shall  be 
a  remainder  or  reversion,  or  other  expectancy,  real  or  per- 
sonal,76 the  entire  property  or  fund  by  which  such  estate, 

74  In  re  Roosevelt's  Estate,  supra;  In  re  Hoffman's  Estate,  supra; 
Talmadge  v.  Seaman,  supra. 

75  See  Appendix,  I.  e,  for  this  statute,  with  amendments  to  1895. 

7  6  The  following  are  some  of  the  provisions  of  the  New  York  Re- 
vised Statutes  (.Banks'  8th  Ed.,  vol.  4,  §  2431),  defining  vested  and 
contingent  estates: 

"Sec.  7.  Estates  as  respects  the  time  of  their  enjoyment  are  di- 
vided into  estates  in  possession  and  estates  in  expectancy. 

"Sec.  8.  An  estate  in  possession  is  where  the  owner  has  an  im- 
mediate right  to  the  possession  of  the  land;  an  estate  in  expectancy 
is  where  the  right  to  possession  is  postponed  to  a  future  period. 

"Sec.  9.  Estates  of  expectancy  are  divided  into  (1)  estates  com- 
mencing at  a  future  day  denominated  future  estates,  and  {2)  re- 
versions. 

"Sec.  10.  A  future  estate  is  an  estate  limited  to  commence  in  pos- 
session on  a  future  day  either  without  the  intervention  of  a  pre- 
cedent estate  or  on  the  determination  by  lapse  of  time  or  otherwise 
of  a  precedent  estate  created  at  the  same  time. 

"Sec.  11.  Where  a  future  estate  is  dependent  upon  a  precedent 

(279) 


§    58  VESTED    AND    CONTINGENT    ESTATES.  [Ch.   6 

income  or  interest  is  supported,  or  of  which  it  is  a  part, 
shall  be  appraised  immediately  after  such  transfer,  or  as 
soon  thereafter  as  may  be  practicable,  at  the  fair  and  clear 
market  value  thereof,  at  that  time;  provided,  however,  that 
when  such  estate,  income  or  interest  shall  be  of  such  a  na- 
ture that  its  fair  and  clear  market  value  cannot  be  ascer- 
tained at  such  time,  it  shall  be  appraised  in  like  manner  at 
the  time  when  such  value  first  became  ascertainable.  The 
value  of  every  future  or  contingent  or  limited  estate,  in- 
come, interest,  or  annuity  dependent  upon  any  life  or  lives 
in  being,  shall  be  determined  by  the  rule,  method,  and 
standard  of  mortality  and  value  employed  by  the  superin- 
tendent of  insurance  in  ascertaining  the  value  of  policies 
of  life  insurance  and  annuities  for  the  determination  of 
liabilities  of  life  insurance  companies,  except  that  the  rate 
of  interest  for  computing  the  present  value  of  all  future 
and  contingent  interests  or  estates  shall  be  5  per  centum 
per  annum."  7T  The  superintendent  of  insurance  shall,  on 
the  application  of  any  surrogate,  determine  the  value  of 

estate  it  may  be  termed  a  remainder  and  may  be  created  and  trans- 
ferred by  that  name. 

"Sec.  12.  A  reversion  is  the  residue  of  an  estate  left  in  the  re- 
mainder-man or  heirs  or  in  the  heir  of  the  testator  commencing  in 
possession  on  the  determination  of  a  particular  estate  granted  or 
devised. 

"Sec.  13.  Future  estates  are  either  vested  or  contingent.  They 
are  vested  when  there  is  a  person  who  would  have  an  immediate 
right  to  the  possession  of  the  lands  upon  the  ceasing  of  the  inter- 
mediate or  precedent  estate.  They  are  contingent  whilst  the  per- 
son to  whom  or  the  event  upon  which  they  are  limited  to  take  effect 
remains  uncertain." 

"Sec.  35.  Expectant  estates  are  descendible,  devisable  and  alien- 
able in  the  same  manner  as  estates  in  possession." 

Upon  these  sections  see  Griffon  v.  Shephard,  124  N.  Y.  70,  20  N. 
E.  339,  affirming  40  Hun,  355;  Talmadge  v.  Seaman.  85  Hun,  242,  32 
N.  Y.  Supp.  900,  reversed  as  In  re  Seaman  (Oct.  8,  1895;  Ct.  App.) 
41  N.  E.  401;   In  re  Tobias.  12  N.  Y.  Law  J.  1104. 

77  Appendix,  I.  e..  Laws  1892,  c.  399,  §  11. 
(280) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

any  such  future  or  contingent  estates,  income,  or  interest 
limited,  contingent,  dependent,  or  determinable  upon  the 
life  or  lives  of  persons  in  being,  upon  the  facts  contained 
in  any  such  appraiser's  report,  and  certify  the  same  to 
the  surrogate;  and  his  certificate  shall  be  conclusive  evi- 
dence that  the  method  of  computation  adopted  therein  is 
correct.78 

The  statute  further  provides 79  that  all  taxes  imposed 
by  the  act  shall  be  due  and  payable  at  the  time  of  the 
transfer, — i.  e.  the  death  of  the  decedent: 80  provided,  how- 
ever, that  taxes  upon  the  transfer  of  any  estate,  property, 
or  interest  therein,  limited,  conditioned,  dependent,  or  de- 
terminable upon  the  happening  of  any  contingency  or  fu- 
ture event,  by  reason  of  which  the  fair  market  value  thereof 
cannot  be  ascertained  at  the  time  of  the  transfer  as  herein 
provided,  shall  accrue  and  become  due  and  payable  when 
the  persons  or  corporations  beneficially  entitled  thereto 
shall  come  into  actual  possession  of  enjoyment  thereof. 

Any  person  or  corporation  beneficially  interested  in  any 
property  chargeable  with  a  tax,  *  *  *  and  execu- 
tors, administrators,  and  trustees  thereof,  may  elect  with- 
in one  year  from  the  date  of  the  transfer  thereof,  as  herein 
provided,  not  to  pay  such  tax  until  the  person  or  persons 
beneficially  interested  therein  shall  come  into  the  actual 
possession  or  enjoyment  thereof.81 

The  statute  provides  s2  that  the  words  "estate"  and  "prop- 
erty," as  used  in  the  act,  shall  be  taken  to  mean  the  prop- 
erty or  interest  therein  of  the  testator,  intestate,  grantor, 
bargainor  or  vendor,  passing  or  transferred  to  those  not 
herein    specifically   exempted   from  the   provisions    of  the 

ts  Laws  1892.  c.  399,  §  13. 

7  9  Laws  1S92,  c.  399.  §  3. 

so  See  In  re  Vassar,  127  N.  Y.  8,  27  N.  E.  394. 
si  Laws  1892,  e.  399,  §  7.    See  Appendix,  I.  e. 

8  2  Laws  1892,  c.  399,  §  22. 

(2S1J 


§   58  VESTED    AND    CONTINGENT    ESTATES.  [Ch.   G 

act,  and  not  as  the  property  or  interest  therein  passing 
or  transferred  to  individual  legatees,  devisees,  heirs,  next 
of  kin,  grantor,  donees,  or  vendees; 83  and  shall  include  all 
property  or  interest  therein,  whether  situated  within  or 
without  the  state,  over  which  the  state  has  any  jurisdic- 
tion for  the  purposes  of  taxation.84  The  word  "transfer," 
as  used  in  the  act,  shall  be  taken  to  include  the  passing  of 
property  or  any  interest  therein  in  possession  or  enjoy- 
ment, present  or  future,  by  inheritance,  descent,  devise,  be- 
quest, grant,  deed,  bargain,  sale,  or  gift  in  the  manner 
prescribed.85 

(3)  Decisions  under  These  Acts. 

The  liability  to  taxation  of  remainder-men  and  of  future 
or  contingent  estates  under  the  acts  of  1885,  1887,  1892, 
may  be  summarized  in  the  following  order,  and,  while  the 
law  on  this  subject  is  much  better  settled,  it  must  be  con- 
ceded that  many  of  the  questions  discussed  with  refer- 
ence to  such  estates  have  not  yet  been  definitely  deter- 
mined by  the  highest  courts  in  Xew  York. 

(a)  Vested  Estates. 

So  far  as  vested  remainders  or  estates  are  concerned, 
the  tax  upon  them  is  held  to  be  due  and  payable  imme- 
diately  upon  decedent's  death.86      All  other  things  being 

S3  This  section  materially  changes  the  law  as  it  originally  stood 
under  the  acts  of  1885  and  1887.  See  In  re  Hoffman's  Estate,  143 
N.  Y.  334,  38  N.  E.  311. 

84  See,  as  to  jurisdiction  over  the  estate  of  a  nonresident,  also 
chapter  4.    See  In  re  James,  144  N.  Y.  G,  38  N.  E.  901. 

8  5  For  the  taxation  of  estates  in  expectancy  or  possession  under 
the  retroactive  clause  (Act  1892,  c.  399,  §  1,  subd.  3),  see  the  subject 
considered  post,  §  58,  subds.  c,  3f ;  also,  Talmadge  v.  Seaman,  85  Hun, 
242,  32  N.  Y.  Supp.  906,  reversed  as  In  re  Seaman  (Oct.  8,  1S95;  Ct. 
App.)  41  N.  E.  401. 

ss  In  re  Vinot's  Estate  (Surr.)  7  N.  Y.  Supp.  517;  In  re  Van  Rens- 
selaer, N.  Y.  Law  J.  May  28,  1SS9;  In  re  Cogswell,  4  Dem.  Sur.  248; 
In  re  Le  Fever,  5  Dem.  Sur.  184;  In  re  Higgins'  Estate,  30  N.  Y. 
(282) 


Ch.   6J  VESTED    AND    CONTINGENT    ESTATES.  §    58 

equal,  in  the  construction  of  wills  the  general  rule  is  to 
favor  the  vesting  of  estates  as  of  the  death  of  the  testator, 
rather  than  a  suspension  of  the  gift  or  devise.87  But  a 
mere  technical  vesting  of  the  nominal  fee  in  estates  in  re- 
mainder of  a  contingent  nature  does  cot  authorize  their 
taxation  as  of  the  time  of  death.  It  was  never  intended 
by  the  law  to  tax  a  theory  having  no  real  substance  be- 
hind it.  The  law  itself  gives  abundant  evidence  in  its 
language  of  the  intent  to  subject  only  real  and  beneficial 

Daily  Reg.  90G:  In  re  Graver's  Estate  (Surr.)  34  N.  Y.  Supp.  474. 
See  note  on  "Vested  Estates,"  etc.,  18  Abb.  N.  C.  300,  where  it  is 
said:  "Limitations  of  future  or  contingent  interests  in  personal 
property  are  subject  to  the  same  rules  so  far  as  prescribed  in  1  Rev. 
St.  p.  722,  etc.,  in  relation  to  future  estates  in  land  [Id.  p.  773,  §  2J. 
But,  notwithstanding  this  provision,  the  distinction  between  what  is 
termed  'vesting'  in  the  one  case  and  in  the  other  continues.  The 
term  'vested'  is  constantly  used  of  legacies  to  indicate  more  than 
not  being  contingent,  in  the  common  use  of  that  term,  as  to  estates 
in  real  property,  viz.  to  indicate  one  which  is  not  subject  to  be  di- 
vested,—one  that  is  not  defeasible  from  lapse  of  time  or  otherwise. 
A  legacy  is  not  said  to  be  vested  except  when  the  legatee,  if  sui 
juris,  has  power  to  extinguish  by  release  or  give  perfect  title  by  as- 
signment. *  *  *  Where  words  of  futurity  are  annexed  to  the  sub- 
stance of  the  gift,  and  there  is  nothing  in  the  will  to  manifest  a  dif- 
ferent intention,  the  gift  itself  will  be  deemed  future,  and  the  ques- 
tion of  who  is  the  beneficiary  will  be  deemed  dependent  upon  that 
state  of  facts  when  that  future  time  shall  arrive;  and  in  this  class 
of  cases  *  *  *  the  legacy  is  said  meanwhile  not  to  be  vested, 
although,  if  it  were  an  estate  in  real  property  given  by  the  same 
language,  it  would  technically  be  called  a  'vested'  as  distinguished 
from  a  'contingent'  remainder."  Talmadge  v.  Seaman,  85  Hun,  242, 
32  N.  Y.  Supp.  900;  reversed,  see  note  S5,  p.  282;  In  re  Curtis, 
142  N.  Y.  219,  36  N.  E.  SS7;  Id.,  73  Hun,  1S5,  25  N.  Y.  Supp.  909; 
In  re  Hoffman's  Estate,  143  N.  Y.  334,  38  N.  E.  311;  In  re  Vassar, 
127  N.  Y.  8,  27  N.  E.  394.  See  the  subject  further  considered,  chap- 
ter 5.  See  Com.  v.  Smith,  20  Pa.  St.  100;  Com.  v.  Eckert,  53  Pa.  St. 
105;    In  re  Nieman's  Estate,  131  Pa.  St.  346,  18  Atl.  900. 

st  Thomson  v.  Hill  (Sup.)  33  N.  Y.  Supp.  812;  Jaudon  v.  Hayes,  79 
Hun,  455,  29  N.  Y.  Supp.  95S. 

(283) 


§    58  VESTED    AND   CONTINGENT    ESTATES.  [Ch.   6 

interests  to  taxation,  and  nothing  in  its  policy  justifies 
the  imposition  of  such  a  burden  where  no  corresponding 
benefit  has  been  received.88  It  does  not  follow  because 
the  legislature  taxes  persons  beneficially  entitled  to  prop- 
erty or  income,  in  possession  or  expectancy,  that  a  tax  was 
thereby  imposed  upon  an  interest  that  may  never  vest. 
Until  that  time  arrives,  the  power  to  tax  does  not  exist.89 

In  disposing  of  questions  under  these  tax  acts  the  legal 
divisions  of  estates  as  classified  and  defined  in  the  Revised 
Statutes  do  not  control,  but  the  language  referring  to  the 
character  of  the  estates  that  should  be  taxed  must  be 
taken  in  its  ordinary  and  popular  sense;  and  where  the 
act  provides  for  a  transfer  tax  as  against  those  who  be- 
come "beneficially  entitled  in  possession  or  expectancy,"  it 
was  intended  by  the  legislature  not  to  tax  a  mere  legal 
estate  or  interest,  which  might  or  might  not  ripen  into  a 
beneficial  one.  The  obligation  to  pay  the  tax  was  not  to 
be  imposed  except  upon  one  who  has  "a  present  enjoy- 
ment, or  a  fixed  and  absolute  right  of  future  enjoyment,"  of 
property.00 

Where  a  wife  was,  with  her  husband,  tenant  by  the  en- 
tirety of  certain  real  estate  under  decedent's  will,  her  in- 
terest, being  certain  and  ascertainable,  and  being  substan- 
tially that  of  a  vested  remainder  under  the  statute,  is  taxa- 
ble during  her  husband's  lifetime,  especially  as  by  law  01 
she  has  power  to  make  immediate  partition  of  her  share.92 

88  Finch,  J.,  in  Re  Curtis,  142  N.  Y.  223,  3G  N.  E.  887;  Talmadge 
v.  Seaman,  85  Hun,  242,  32  N.  Y.  Supp.  90G. 

so  In  re  Roosevelt's  Estate,  143  N.  Y.  120,  38  N.  E.  281. 

so  Talmadge  v.  Seaman,  supra;  In  re  Tobias,  N.  Y.  Law  J.  Feb. 
8,  1S95. 

oi  Laws  N.  Y.  1880,  c.  472. 

9  2  in  re  Higgins,  supra.     But  see,  as  construing  this  statute,  O'Con- 
nor v.  McMahon,  54  Hun,  GG,  7  N.  Y.  Supp.  225;    Stelz  v.  Schreck 
(Sup.)  10  N.  Y.  Supp.  790;   Beach  v.  Hollister,  3  Hun,  519.    See  New- 
ell v.  Newell,  7  Ch.  App.  253. 
(284) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

A  devise  of  premises  to  E.,  "and  at  her  decease  to  become 
the  property  of  her  son  G.,"  gives  E.  a  life  estate,  and  a 
vested  remainder  to  G.,  which  is  appraisable  and  taxable.93 

(b)  Contingent  or  Future  Estates. 

Where,  as  we  have  seen,94  for  any  reason  it  becomes  im- 
possible to  appraise  or  value  at  decedent's  death  any  con- 
tingent or  future  estate  devised  to  take  effect  upon  the 
termination  of  a  preceding  estate,  or  upon  any  uncertain 
event,  or  it  cannot  be  determined  to  whom  such  contingent 
interest  will  pass,  no  tax  can  then  be  imposed  upon  such 
contingent  interest  until  it  actually  vests  in  the  possession 
or  enjoyment  of  the  heir,  devisee,  or  beneficiary.95 

This  was  the  rule  announced  under  the  statutes  in  force 
prior  to  1S92,  and  it  was  said  that  in  such  cases  the  provi- 
sion of  the  statute  requiring  the  remainder-men  to  file  the 
conditional  bond  was  not  applicable.96  Substantially  the 
same  rule  is  adopted  in  Pennsylvania.97 

»3  in  re  G rover's  Estate  (Surr.;   1895)  34  N.  Y.  Supp.  474. 

94  Chapter  5,  §  54,  subd.  d. 

9  5  in  re  Cager's  Will,  111  N.  Y.  343,  18  N.  E.  806;  In  re  Stewart, 
131  N.  Y.  277,  30  N.  E.  184;  In  re  Curtis  (1894)  142  N.  Y.  219,  3«J 
N.  E.  S87,  affirming  73  Hun,  185,  25  N.  Y.  Supp.  909;  In  re  Roose- 
velt's Estate,  143  N.  Y.  120,  38  N.  E.  281,  affirming  7G  Hun,  257,  27 
N.  Y.  Supp.  741;  In  re  Hoffman's  Estate,  143  N.  Y.  334,  38  N.  E. 
311,  affirming  76  Hun,  399,  27  N.  Y.  Supp.  1080;  In  re  Le  Fever,  5 
Dem.  Sur.  1S4;  In  re  Wallace  (Suit.)  4  N.  Y.  Supp.  4G5,  4GG,  citiug 
In  re  Bruce  (not  reported);  In  re  Millward's  Estate,  G  Misc.  Rep.  425, 
27  N.  Y.  Supp.  28G;  Talmadge  v.  Seaman,  S5  Hun,  242,  32  N.  Y.  Supp. 
906,  reversed  as  In  re  Seaman  (Oct.  8,  1895;  Ct.  App.)  41  N.  E. 
401;  In  re  Wheeler's  Estate,  1  Misc.  Rep.  450,  22  N.  Y.  Supp.  1075. 
Form  of  order  in  such  cases  given  under  acts  of  1885  and  1S87.  In  re 
Cogswell,  4  Dem.  Sur.  248;  In  re  Hopkins,  6  Dem.  Sur.  1;  In  re 
Le  Fever,  supra;  In  re  Surrogate  of  Cayuga  Co.,  46  Hun,  657;  In  re 
Clark  (Surr.)  5  N.  Y.  Supp.  199;  In  re  Fleming's  Estate,  N.  Y.  Law 
J.  Oct.  15,  1889;    In  re  Benjamin,  36  N.  Y.  Daily  Reg.  906. 

96  In  re  Cager,  111  N.  Y.  349,  350,  18  N.  E.  866;  In  re  Lord,  10  N. 
Y.  Law  J.  260. 

»7  in  re  Nieman's  Estate,  131  Pa.  St.  346,  18  Atl.  900.    But  see  In 

(285) 


§    58  VESTED    AND    CONTINGENT    ESTATES.  fCh.  6 

In  Re  Cager,*  which  is  the  earliest  case  upon  this  subject, 
decedent,  Cager,  left  a  life  estate  to  his  widow  in  the  property 
devised,  giving  her,  however,  a  limited  power  of  disposition 
during  life  over  the  corpus  of  the  estate,  with  remainder  over 
of  what  should  remain  to  collateral  heirs;  and  it  was  ruled 
that,  as  she  had  power  during  life  to  dispose  of  the  whole 
estate  by  any  means  except  by  will,  any  interest  in  the  other 
legatees  was  wholly  dependent  upon  whether  the  power  of 
disposition  08  was  exercised  by  the  life  tenant  during  her  life- 
time," and  that  while  it  was  possible  that  the  remainder-men 
might  eventually  take  a  valuable  estate  under  the  will,  that 
event,  being  contingent  upon  the  nonexercise  by  the  widow 
of  the  power  of  disposition,  rendered  the  present  appraisable 
value  of  such  interest  impossible  of  any  correct  or  reason- 
able approximate  valuation,  and  hence  it  was  not  liable 
to  taxation.  The  court  said:  "When  the  question  as  to 
whether  any  property  at  all  shall  pass  under  the  limita- 
tion over,  and  if  so,  how  much,  depends  upon  the  will  of  the 

re  Brewer's  Estate,  15  Pa.  Law  J.  (N.  S.)  433,  435,  16  Pa.  Law  J. 
(N.  S.)  114. 

*  111  N.  Y.  349,  350,  18  N.  E.  866. 

»8  By  Rev.  St.  N.  Y.  (Banks'  8th  Ed.)  p.  2446,  it  is  provided: 

"Sec.  81.  Where  an  absolute  power  of  disposition  not  accompanied 
by  any  trust  shall  be  given  to  the  owner  of  a  particular  estate  for 
life  or  years,  such  estate  shall  be  changed  into  a  fee  absolute  in  re- 
spect to  the  rights  of  creditors  or  purchasers,  but  subject  to  any 
future  estate  limited  thereon  in  case  the  power  should  not  be  exe- 
cuted, or  the  lands  should  not  be  sold  for  the  satisfaction  of  debt." 

"Sec.  85.  Every  power  of  disposition  shall  be  deemed  absolute  by 
means  of  which  the  grantee  is  able  in  his  lifetime  to  dispose  of  the 
entire  fee  for  his  own  benefit." 

so  Citing  Van  Home  v.  Campbell,  100  N.  Y.  287,  3  N.  E.  316,  771; 
Smith  v.  Van  Ostrand,  64  N.  Y.  278;  Terry  v.  Wiggins,  47  N.  Y.  512. 
See,  also,  In  re  Le  Fever,  5  Dem.  Sur.  24.  As  to  when  husband  does 
not  take  an  estate  in  fee,  etc.,  see  important  case  Rose  v.  Hatch,  125 
N.  Y.  427,  26  N.  E.  467.  As  to  what  constitutes  power  of  disposition 
in  life  tenant,  see  Flanagan  v.  Flanagan,  8  Abb.  N.  C.  416;  Wager  v. 
(280) 


Ch.   6J  VESTED    AND   CONTINGENT    ESTATES.  §   58 

first  taker,  we  are  unable  to  see  any  rule  by  which  such 
value  (of  the  contingent  estate)  can  be  ascertained." 

In  such  cases  it  was  held  that,  there  being  no  basis  upon 
which  the  value  of  the  devise  over  could  be  appraised, 
there  was  no  foundation  for  the  imposition  of  the  tax.100 

So  where  the  widow,  as  life  tenant,  has  a  right  to  use 
the  principal  to  make  up  a  deficiency  in  the  income  allowed 
her  under  the  will,  and  it  appears  that  the  whole  estate 
may  be  absorbed  during  her  lifetime,  there  can  be  no  taxa- 
tion of  the  remainder.101 

And  where  decedent  bequeathed  the  residue  of  her  estate 
to  her  executor,  in  trust  to  collect,  invest,  and  pay  the 
net  income  to  her  brother  for  life,  with  discretionary  power 
to  expend  certain  sums  annually  for  his  support,  with  re- 
mainder to  collaterals,  the  court  said:102  "It  is  impossi- 
ble to  determine  how  long  he  (the  life  tenant)  may  live, 
and  how  much  of  the  principal  fund  may  be  used  for  him 
by  the  executor  in  the  exercise  of  the  limited  discretion 
conferred  upon  him  by  will;  indeed,  it  is  possible  that 
the  whole  residuum  may  be  exhausted  in  the  use  of  the 
discretionary  power."  103 

And  where  the  remainder-men  take  upon  the  contin- 
gency of  surviving  the  life  tenant,  or  of  reaching  a  cer- 
tain age,  their  interests  are  not  taxable  at  decedent's  death, 
but  only  at  the  time  the  contingency  happens; 104  the  rule 

Wager,  96  N.  Y.  174;  Livingstone  v.  Murray,  68  N.  Y.  48G;  Ackerman 
v.  Gorton,  67  N.  Y.  63;  Haynes  v.  Sherman,  117  N.  Y.  233,  22  N.  E. 
938;   Thomas  v.  Wolford  (Sup.)  1  N.  Y.  Supp.  610. 

ioo  in  re  Cager's  Will,  111  N.  Y.  349,  350,  18  N.  E.  866. 

ioi  In  re  Fleming's  Estate,  N.  Y.  Daily  Reg.  Oct.  15,  1889.  See 
In  re  Leavitt  (Surr.)  4  N.  Y.  Supp.  179;  In  re  Millward's  Estate 
(Surr.)  27  N.  Y.  Supp.  286. 

102  in  re  Hopkins,  6  Dem.  Sur.  1. 

103  As  to  discretionary  powers,  see  In  re  Stewart,  131  N.  Y.  586, 
SO  N.  E.  184;    Id.  (Surr.)  10  N.  Y.  Supp.  15;  and  post,  §  60. 

104  in  re  Wallace's  Estate  (Surr.)  4  N.  Y.  Supp.  465;   In  re  Bruce, 

(287) 


§   58  VESTED   AND    CONTINGENT   ESTATES.  [Cll.   6 

in  one  case  being  announced  that  a  contingent  remainder 
is  neither  appraisable  nor  taxable  until  the  defeating  con- 
tingency has  been  forever  rendered  impossible  of  occur- 
rence.108 

These  rulings,  under  the  early  statutes  in  force  until  1892, 
were,  in  all  respects,  subsequently  confirmed  in  elaborate 
opinions  by  the  court  of  appeals  in  Re  Curtis,  and  other 
cases.106 

In  that  case  the  question  arose  under  the  act  of  1885.107 
The  facts  were  that  the  will  of  C.  created  trusts  for  the 
benefit  of  her  two  daughters,  each  trust  for  the  life  of  the 
beneficiary.  The  remainders  were  given,  one-half  to  such 
of  her  nephews,  and  one-half  to  such  of  her  nieces,  named, 
as  should  be  living  at  the  time  of  the  successive  termina- 
tion of  each  trust;  if  any  of  them  should  then  be  dead 
leaving  issue,  to  such  issue.  It  was  held  that  the  re- 
mainders were  not  liable  to  taxation  under  the  act  until 
the  successive  termination  of  each  trust;  that  it  could 
not  until  then  be  determined  whether  the  trust  fund  would 
pass  to  persons  in  whose  hands  it  would  be  taxable  or  to 
others  in  whose  possession  it  would  be  exempt,  as,  in  case 
of  the  death  of  the  nephews  or  of  the  nieces  named  prior 
to  the  expiration  of  the  trust,  the  one-half  of  the  remain- 
der would  go  to  the  heirs  at  law  of  the  testatrix;    also 

cited  in  4  N.  Y.  Supp.  406  (not  reported);  In  re  Le  Fever,  5  Dem.  Sur. 
184;  In  re  Matthews'  Estate,  N.  Y.  Law  J.  July  27,  1889;  In  re 
Fleming's  Estate,  N.  Y.  Law  J.  Oct.  15,  1889;  In  re  Benjamin's 
Estate,  36  N.  Y.  Daily  Reg.  906. 

105  in  re  Le  Fever,  supra;  In  re  Benet,  N.  Y.  Law  J.  March  4,  1S89. 

ice  142  N.  Y.  219,  36  N.  E.  887  (1894),  affirming  73  Hun,  185,  25 
N.  Y.  Supp.  909:  In  re  Roosevelt's  Estate  (1894)  143  N.  Y.  120.  38 
N.  E.  281,  affirming  76  Hun,  257,  27  N.  Y.  Supp.  741;  In  re  Hoff- 
man's Estate  (1S94)  143  N.  Y.  327,  38  N.  E.  311,  affirming  76  Hun, 
399,  27  N.  Y.  Supp.  1086.  See,  also,  Talmadge  v.  Seaman,  85  Hun, 
242,  32  N.  Y.  Supp.  906,  reversed  as  In  re  Seaman  (Oct.  8,  1895; 
Ct.  App.)  41  N.  E.  401. 

107  Laws  18S5,  c.  483. 
(288) 


Ch.    6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

that,  conceding  there  was,  upon  the  death  of  the  testa- 
trix, a  technical  Testing  of  the  remainders  in  the  benefi- 
ciaries named,  this  nominal  fee  might  never  become  a  tax- 
able estate. 

Finch,  J.,  said :  "  *  *  *  Until  the  end  of  the  trusts, 
it  cannot  be  determined  whether  the  property  passing  by 
the  remainders  will  be  taxable  at  all;  that  is  to  say, 
whether  it  will  pass  actually  and  beneficially  to  persons 
in  whose  hands  it  will  be  taxable,  or  to  others  in  whose 
possession  it  will  be  exempt.  If  in  the  end  these  remain- 
ders go  to  the  nephews  and  nieces,  a  tax  will  be  imposed; 
but  if,  instead  of  passing  to  them,  the  remainders  should 
go  to  the  children  and  grandchildren,  they  would  be  ex- 
empt from  taxation.  Under  this  will,  however,  while  we 
may  speculate  as  to  the  technical  location  of  the  fee  pend- 
ing the  running  of  the  trusts,  the  actual  and  beneficial  in- 
terests in  remainder  may  pass  wholly  to  the  two  daughters 
by  intestacy.  If,  before  the  termination  of  the  trusts,  the 
two  nieces,  children  of  R,  should  die  without  leaving  issue 
or  issue  living  at  the  supposed  date,  the  will  would  fail  to 
operate  upon  one-half  of  the  estate  in  remainder,  and  that 
would  devolve  at  once  upon  the  two  daughters  as  heirs  or 
next  of  kin.  In  like  manner,  if  the  three  nephews  should 
die  without  issue  living,  as  one  of  them  already  has,  the 
other  half  of  the  remainder  would  take  the  same  direc- 
tion; so  that  until  the  termination  of  the  trusts  it  will 
be  impossible  to  know  whether  the  remainders  are  in  truth 
taxable  or  not.  Prior  to  that  event,  the  state  cannot  es- 
tablish that  any  beneficial  interest  will  pass  to  persons  in 
whose  hands  it  will  be  taxable;  and,  until  it  can  show 
that  vital  and  necessary  fact,  its  right  to  tax  cannot  arise. 
A  time  will  come,  at  the  close  of  the  trusts,  when  the 
question  can  be  settled;  and,  if  then  the  property  passes 
to  the  nephews  and  nieces,  the  proper  assessment  can  be 
made  and  collected.  *  *  *  The  only  possible  answer  is 
law  inher.— 19  (289) 


§    58  VESTED    AND    CONTINGENT    ESTATES.  [Ch.    6 

that  made  by  the  surrogate.  He  says  that  the  remainders 
vested  in  the  nephews  and  nieces  at  once  upon  the  death  of 
the  testatrix,  and  so  became  contingent  interests,  taxable 
under  the  law.  If  that  technical  vesting  be  admitted, 
what  so  passed  was  rather  a  theoretical  possibility  than  a 
tangible  reality,  for  the  life  estate  was  in  the  trustee  of 
the  daughters  carrying  the  whole  beneficial  use.  There 
was  no  power  over  it  in  the  contingent  remainder-men; 
and  the  nominal  and  technical  fee  might  never  become  a 
taxable  estate.  It  was  never  intended  by  the  law  to  tax 
a  theory  having  no  real  substance  behind  it.  As  was  said 
in  Re  Swift,108  the  question  of  taxation  is  one  of  fact,  and 
cannot  turn  on  theories  or  fictions.  This  case  illustrates 
one  result  of  the  contrary  doctrine.  W.  R.,  a  nephew 
named,  had  died  without  issue.  He  never  took  anything 
beneficial  under  the  will,  and  his  estate  can  take  noth- 
ing, and  yet  it  is  assessed  for  about  $1,000,  which,  it  is 
said,  will  more  than  exhaust  all  that  he  left,  and  in  return 
for  which  he  received  actually  nothing,  and  theoretically 
only  an  unsubstantial  legal  fabric.  That  is  too  unjust  to 
be  borne.  *  *  *  The  law  itself  gives  abundant  evi- 
dence in  its  language  of  the  intent  to  subject  only  real 
and  beneficial  interests  to  taxation,  and  nothing  in  its  pol- 
icy justifies  the  imposition  of  such  a  burden  where  no  cor- 
responding benefit  has  been  received." 

"When  it  is  only  in  the  chance  of  uncertain  future  events 
that  such  an  interest  will  alight  where  it  will  be  taxable 
at  all,  a  delay  until  the  contingency  is  solved  is  neces- 
sary and  proper." 

The  question  was  again  considered  in  Re  Roosevelt's  Es- 
tate,109 under  the  act  of  1887.  In  that  case  decedent's 
residuary  estate  was   given   to  his  executors  in  trust  to 

108  137  N.  Y.  80,  32  N.  E.  1096. 
loo  14:;  N.  Y.  120,  3S  N.  E.  281. 
(290) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

pay  the  income  to  his  wife  for  life,  and  at  her  death  the 
estate  was  given  to  other  beneficiaries,  subject  to  seven  life 
annuities,  with  interests  in  these  latter,  in  the  nature  of 
cross  remainders,  contingent  upon  survival  inter  sese.  In 
confirming  the  ruling  of  the  supreme  court 110  that  the 
annuities  and  contingent  remainders  were  not  taxable  at 
decedent's  death,  Bartlett,  J.,  in  the  court  of  appeals,  said: 

"Two  questions  are  presented  for  our  determination,  viz.: 
First,  are  the  annuities  created  by  the  will  such  property, 
in  a  legal  sense,  as  to  be  presently  taxable,  and  can  their 
fair  market  value  at  the  time  of  decedent's  death  be  ascer- 
tained? second,  is  the  fair  and  clear  market  value,  at  the 
time  of  testator's  death,  of  the  estates  in  remainder,  ascer- 
tainable, and  is  the  tax  thereon  due  at  once?  In  decid- 
ing both  of  these  questions  we  are  to  reasonably  construe 
the  statute,  and  give  effect,  if  possible,  to  all  its  provi- 
sions. As  to  the  annuities,  the  appellant's  counsel  con- 
tends that  they  are  entitled  to  an  interest  in  or  income 
from  the  property  of  the  testator,  and  the  statute  requires 
the  tax  to  be  paid  immediately.  *  *  *  It  is  not  to 
be  assumed  that  the  legislature  intended  to  compel  the 
citizen  to  pay  a  tax  upon  an  interest  he  may  never  receive, 
and  the  reasonable  construction  of  this  statute  leads  to  no 
such  unjust  result. 

"It  does  not  follow  because  the  legislature  taxes  persons 
beneficially  entitled  to  property  or  income,  in  possession 
or  expectancy,  that  a  tax  was  thereby  imposed  upon  an 
interest  that  may  never  vest.  Until  that  time  arrives  the 
power  to  tax  does  not  exist.  The  testator  has  created  seven 
life  annuities  if  the  annuitants  survive  his  wife,  and  there 
can  be  no  vested  interest  in  any  of  them  until  the  happen- 
ing of  that  event.  All  may  survive,  a  portion  may  be  liv- 
ing, every  one  may  be  dead.     To  hold  such  a  possibility 

iio76  Hun.  257,  27  N.  Y.  Supp.  741. 

(291) 


§   58  VESTED    AND    CONTINGENT    ESTATES.  |_Ch.  ^ 

presently  taxable,  and  its  value  capable  of  immediate  com- 
putation, shocks  the  sense  of  justice.  This  brings  us  to 
the  remaining  question  of  the  taxation  of  the  estates  in 
remainder.  The  testator  has,  on  the  death  of  his  wife, 
given  his  entire  estate  to  12  nephews  and  nieces,  subject 
to  the  payment  of  the  annuities.  Two  of  these  remain- 
der-men died  before  the  testator.  It  is  contended  by  the 
respondents  that  it  is  impossible  to  ascertain  the  fair  and 
clear  market  value  of  these  remainders  at  the  time  of  the 
death  of  the  testator,  for  the  reason  that  the  annuitants  rep- 
resent estates  or  interests,  unvested  and  contingent,  which, 
taken  in  connection  with  the  life  estate  of  the  widow,  ren- 
ders the  present  value  of  the  ultimate  remainders  unas- 
certainable.  The  amount  that  will  ultimately  be  paid  to 
the  remainder-men  is  contingent,  depending  on  future 
events. 

"Whenever  the  tax  on  annuitants  is  payable  the  estate 
must  pay  it.  What  the  amount  of  the  tax  will  be  depends 
upon  the  survivorship  of  annuitants,  and  the  number  of  life 
annuities,  if  any,  that  shall  vest  on  the  death  of  the  widow. 

"This  court  has  recently  decided  that  it  is  not  the  vest- 
ing of  remainders  that  renders  them  contingent,  taxable 
interests  under  the  law.111  In  the  case  cited  it  was  held 
that  the  nominal  fee  might  never  become  a  taxable  estate, 
for  the  reason  that,  if  the  nephews  and  nieces  in  whom 
it  was  claimed  to  have  vested  died  without  issue  before 
the  termination  of  certain  trusts,  the  fee  would  pass  to 
lineals,  not  taxable.  This  was  the  uncertainty  which  post- 
poned the  payment  of  the  tax.  In  case  at  bar  there  is  a 
contingency  affecting  the  value  of  the  estate,  as  already 
indicated,  which  brings  it  strictly  within  the  principle  of 
the  Curtis  Case." 

So  the  same  doctrine  was  announced  in  the  recent  Case 

in  In  re  Curtis,  142  N.  Y.  219,  36  N.  E.  887. 
(292) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

of  Hoffman.112  In  this  case  the  income  of  a  certain  fund 
was  bequeathed  to  the  testatrix's  mother  for  life,  and,  upon 
her  death,  such  income  was  bequeathed  to  testatrix's 
daughter  for  life,  and  upon  her  death  the  principal  sum 
was  directed  to  be  paid  to  her  issue.  If  no  issue  survived 
her,  she  having  survived  testatrix's  mother,  then,  upon  her 
death  without  issue,  one-half  of  the  fund  should  be  paid 
to  a  niece  of  testatrix  and  the  other  half  to  another  niece. 
It  was  further  provided  that,  in  case  of  the  death  of  the 
daughter  before  testatrix's  mother,  the  fund  should  go  to 
the  issue  of  such  daughter,  if  any.  If  no  issue  survived 
said  daughter,  one-half  each  of  said  fund  should  go  to  said 
nieces  or  their  legal  representatives.113 

Finch,  J.,  said:  "As  to  the  estates  of  the  daughter  Ella 
and  the  granddaughter  Olga,  we  agree  with  the  conclu- 
sions of  the  general  term.  By  the  will  the  mother  took  a 
life  estate.  If  upon  her  death  Ella  survives,  the  latter 
will  take  a  life  estate,  but,  if  she  dies  before  her  mother, 
Ella  will  take  nothing,  and  have  no  estate  to  be  taxed. 
In  that  event  there  will  be  no  actual  transfer  to  her  of 
any  portion  of  the  property  of  decedent.  She  ought  not 
to  be  taxed  until  events  make  it  certain  that  there  is  an 
actual  and  beneficial  transfer  of  the  property  to  her.  The 
remainder  goes  to  Olga,  if  she  is  living  at  the  death  of  her 
mother;  but,  if  she  is  then  dead  without  issue,  that  re- 
mainder goes  to  certain  nephews  and  nieces.  If  it  goes 
to  her,  it  will  be  taxable  at  one  per  cent,  but,  if  to  the 
collaterals,  then  at  five  per  cent.114  Until  events  deter- 
mine the  question,  it  cannot  be  known  what  tax  is  charge- 
able, nor  by  whom  it  is  payable.     Our  decision  in  Re  Cur- 

112  143  N.  Y.  334,  38  N.  E.  311,  affirming  76  Hun,  399,  27  N.  Y. 
Supp.  1086;   Talmadge  v.  Seaman,  supra. 

us  See  76  Hun,  399,  27  N.  Y.  Supp.  10S6,  for  provisions  of  the 
will  in  this  case. 

H4  This  under  the  act  of  1S92,  Appendix,  I.  e. 

(293) 


§    58  VESTED    AND    CONTINGENT    ESTATES.  [Ch.   6 

tis  115  is  not  decisive,  because  the  facts  are  essentially  dif- 
ferent; but  in  that  case  I  expressed  what  was  our  de- 
cided drift  of  opinion  in  cases  more  like  the  present,  and 
fairly  settled  later  in  Re  Roosevelt's  Estate.116  We  are 
obliged  to  follow  one  of  two  lines  of  construction.  We 
must  open  all  the  nice  and  difficult  questions  which  arise 
under  a  will  as  to  the  vesting  of  technical  legal  estates, 
although  future  and  contingent,  and  assess  the  tax  upon 
what  are  in  reality  only  possibilities  and  chances,  and  so 
complicate  the  statute  with  the  endless  brood  of  difficult 
questions  which  gather  about  the  construction  of  wills; 
or  we  must  construe  it  in  view  of  its  aim  and  purpose,  and 
the  object  it  seeks  to  accomplish,  and  so  subordinate  tech- 
nical phrases  to  the  facts  of  actual  and  practical  owner- 
ship. 

"For  taxation  is  a  hard  fact,  and  should  attach  only  to 
such  ownership,  and  may  properly  be  compelled  to  wait 
until  chances  and  possibilities  develop  into  the  truth  of 
an  actual  estate  possessed,  or  to  which  there  exists  an 
absolute  right  of  future  possession.  I  am  not  shutting  my 
eyes  to  the  statutory  language,  which  is  quite  broad.  The 
property  taxed  may  be  an  estate  'for  a  term  of  years  or 
for  life  or  determinable  upon  any  future  or  contingent 
estate'  or  'a  remainder,  reversion,  or  other  expectancy,'  and 
the  tables  of  mortality  may  be  resorted  to  for  the  ascer- 
tainment of  values.  And  yet  it  is  the  'fair  market  value,' 
the  'fair  and  clear  market  value,'  which  is  to  be  assessed, 
and  with  the  proviso  that,  if  that  value  cannot  be  at  once 
ascertained,  the  appraisal  is  to  be  adjourned.  I  can  scarce- 
ly imagine  a  contingency  depending  upon  lives  which  math- 
ematics could  not  solve  by  the  doctrine  of  chances  and  the 
averages  of  mortality,  and  there  could  hardly  be  an  ad- 

115  142  N.  Y.  219,  36  N.  E.  887. 
us  143  N.  Y.  120,  3S  N.  E.  281. 
(294) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

journment  unless  upon  some  rare  contingency  having  no 
averages,  and  the  results  in  cases  dependent  upon  lives 
might  still  leave  the  'fair  and  clear  market  value'  in  doubt, 
and  yield  sums  which  no  sale  in  the  market  would  pro- 
duce. My  judgment  is  further  guided  by  the  very  sig- 
nificant definition  of  the  word  'transfer'  in  section  22.  It 
'shall  be  taken  to  include  the  passing  of  property,  or  any 
interest  therein,  in  possession  or  enjoyment,  present  or 
future.'  It  thus  contemplates  a  present  enjoyment,  or  a 
fixed  and  absolute  right  of  future  enjoyment,  and  adjourns 
the  appraisal  until  the  fulfillment  of  contingencies  leaves 
those  results  attained.  Here  there  must  be  that  adjourn- 
ment until  the  rights  of  Ella  and  Olga  become  fixed  and 
actual.  The  result  does  no  injustice  to  the  state.  The 
trust  fund  must  remain  in  the  hands  of  the  executors  to 
feed  the  life  estates  and  for  payment  over  of  the  remainder. 
The  executors  must  pay  the  tax  when  they  know  against 
whom  it  is  chargeable,  and  the  rate  to  be  assessed.  The 
state  will  get  its  tax  when  the  legatees  get  their  property." 

So  the  value  of  a  bequest  to  testator's  widow  for  life,  or 
until  she  marries  again,  cannot  be  determined  for  the  pur- 
pose of  taxation  under  the  transfer  tax  law  until  the  termi- 
nation of  the  widow's  estate  by  death  or  marriage.  "While 
we  have  an  established  method  for  ascertaining  the  value  of 
the  life  estate  of  a  widow,  based  upon  an  arbitrary  rule  as 
to  probable  time  of  death,  there  is  lacking  any  such  rule  to 
enable  us  to  approximate  the  period,  when,  if  at  all,  she  may 
remarry.  That  defies  all  calculation.  Hence  the  value  of 
her  estate  or  of  the  remainder  cannot  now  be  ascertained 
for  the  purpose  of  the  assessment  of  the  tax."  117 

Where  the  business  of  the  partnership  testator  was  con- 
cerned in  was  to  be  continued  by  the  executors  till  it  could 

i it  Coffin,  S.,  in  Re  Millward's  Estate  (1894)  6  Misc.  Rep.  425,  27 
N.  Y.  Supp.  288. 

(295) 


§   5S  VESTED    AND    CONTINGENT   ESTATES.  [Ch.  6 

be  disposed  of  to  advantage,  and  this  course  was  essential 
to  realizing  the  full  value  of  it,  the  assessment  and  collec- 
tion of  the  tax  \v;is  post] toned  until  the  beneficiaries  came 
into  actual  possession.118 

A  devise  of  a  remainder  after  a  life  estate,  if  the  person 
named  as  a  remainder-man  be  then  living  with  limitation 
over  in  case  he  then  be  dead,  is  not  taxable  during  the  life- 
time of  the  life  tenant.119 

(c)  When  not  Taxable  nor  Appraisable  at  Death. 

So,  under  recent  rulings,  and  under  the  act  of  1892,  such 
future  or  contingent  interests  are  neither  taxable  nor  ap- 
praisable where  the  value  cannot  be  ascertained  at  the  de- 
cedent's death,  and  not  until  they  vest  in  the  actual  posses- 
sion or  enjoyment  of  the  beneficiary,  or  until  the  contin- 
gency happens.120 

The  act  of  1802  121  provides  that  if  the  taxable  property 
shall  be  an  estate,  income,  or  interest  for  a  term  of  years, 
or  for  life,  or  determinable  upon  any  future  or  contingent 
estate,  or  shall  be  a  remainder  or  reversion  or  other  expect- 
ancy, real  or  personal,  the  entire  property  or  fund  by  which 
such  estate,  income,  or  interest  is  supported,  or  of  which  it 
is  a  part,  shall  be  appraised  immediately  after  such  transfer, 
or  as  soon  thereafter  as  may  be  practicable,  at  the  fair  and 
clear  market  value  thereof,  at  that  time;  provided,  how- 
ever, that  when  such  estate,  income,  or  interest  shall  be  of 

us  in  re  Wheeler's  Estate,  1  Misc.  Rep.  450,  22  N.  Y.  Supp.  1075. 
us  In  re  Westcott's  Estate  (1895)  11  Misc.  Rep.  589,  33  N.  Y.  Supp. 
426;  following  In  re  Hoffman's  Estate,  143  N.  Y.  327,  38  N.  E.  311. 

120  see  Appendix,  I.  e,  Laws  1892,  c.  399,  §§  3,  7,  11.  13,  22;  In 
re  Curtis,  142  N.  Y.  223,  36  N.  E.  8S7;  In  re  Roosevelt's  Estate, 
143  N.  Y.  120,  38  N.  E.  281;  In  re  Hoffman's  Estate,  143  N.  Y.  327, 
38  N.  E.  311;  In  re  Mill  ward's  Estate  (1894)  6  Misc.  Rep.  425,  27  N. 
Y.  Supp.  2S8,  and  cases  supra. 

121  Act  1892,  supra. 
(296) 


-Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

such  a  nature  that  its  fair  and  clear  market  value  cannot 
be  ascertained  at  such  time,  it  shall  be  appraised  in  like 
manner  at  the  time  when  such  value  first  became  ascertain- 
able. The  act  further  authorizes  the  state  superintendent 
of  insurance  to  determine  the  value  of  such  estates  by  the 
rule,  method,  and  standard  of  mortality  and  value  employed 
by  him  in  ascertaining  the  value  of  policies  of  life  insurance 
and  annuities,  and  his  certificate  is  made  conclusive  evi- 
dence that  the  method  of  computation  therein  is  correct.122 
The  statute  further  provides  that  all  taxes  shall  be  due  and 
payable  at  the  time  of  transfer;  provided,  however,  that 
taxes  upon  the  transfer  of  any  estate,  property,  or  interest 
therein,  limited,  conditioned,  dependent,  or  determinable 
upon  the  happening  of  any  contingency  or  future  event,  by 
reason  of  which  the  fair  market  value  thereof  cannot  be 
ascertained  at  the  time  of  the  transfer  as  herein  provided, 
shall  accrue  and  become  due  and  payable  when  the  persons 
or  corporations  beneficially  entitled  thereto  shall  come  into 
actual  possession  or  enjoyment  thereof. 

In  Re  Curtis  123  the  question  of  the  taxation  of  contingent 
estates  was  determined  under  the  act  of  1885,  containing 
no  such  provisions  as  those  above,  but  the  question  of  the 
appraisement  of  such  estates  was  not  passed  upon,  although 
the  court  did  say  that  a  time  would  come  at  the  close  of  the 
trusts  when  the  question  of  their  taxation  could  be  settled, 
and  if  then  the  property  passed  to  taxable  persons  the  proper 
assessment  could  be  made  and  collected.  But  O'Brien,  J., 
in  the  court  below,12*  said:  "No  appraisement  of  the  contin- 
gent interests  of  the  collateral  relatives  should  be  attemp- 
ted to  be  made,  nor  any  tax  imposed  thereon,  until  such  in- 
terests become  vested  in  possession,  and  by  the  removal  of 

122  Laws  1892,  c.  399,  §  13.  123  in  re  Curtis,  supra. 

124  73  Hun,  190,  25  N.  Y.  Supp.  909. 

(297) 


§   58  VESTED    AND    CONTINGENT    ESTATES.  [Ch.   & 

the  contingency  it  appears  whether  they  have  so  vested  in 
parties  liahle  to  taxation  or  in  parties  exempt." 

In  Re  Roosevelt's  Estate125  the  question  arose  under  the 
act  of  1887,  where  there  were  contingent  annuities  and  re- 
mainders. In  deciding  these  questions  in  the  negative  the 
court  said:  "To  hold  such  a  possibility  presently  taxable, 
and  its  value  capable  of  immediate  computation,  shocks  the 
sense  of  justice.  *  *  *  In  the  case  at  bar  there  is  a 
contingency  affecting  the  value  of  the  estate,  as  already  in- 
dicated, which  is  strictly  within  the  principle  of  the  Curtis 
Case."  126  And,  in  referring  to  the  act  of  1892,127  said:  "The 
legislature  *  *  *  has  given  a  practical  construction  to 
its  previous  legislation  on  this  subject  when  it  provides  that, 
where  the  fair  market  value  of  the  property  or  interest  can- 
not be  ascertained  at  the  time  of  the  transfer,  the  tax  shall 
become  due  and  payable  when  the  beneficiary  shall  come 
into  actual  possession  or  enjoyment." 

In  Re  Hoffman's  Estate  128  the  question  arose  under  the 
act  of  1892.  There  were  life  estates,  the  income  to  be  paid 
to  the  widow  for  life;  and,  if  the  daughter  survived,  to  her 
for  life,  the  principal  at  the  expiration  of  the  trust  to  be 
paid  to  the  issue  of  the  daughter,  if  any  living,  at  her  death; 
if  none,  then  to  two  nieces  of  the  testatrix.  The  testatrix 
died,  leaving  her  mother,  daughter,  and  a  child  of  the  latter 
surviving.  In  holding  that  the  interests  after  the  life  es- 
tate of  the  mother  were  not  taxable  until  they  vested  in  the 
actual  possession  or  enjoyment  of  the  beneficiary  in  remain- 
der, the  court,  per  Finch,  J.,  said  with  reference  to  the  ap- 
praisement of  such  estates:  "I  am  not  shutting  my  eyes  to 
the  statutory  language,  which  is  quite  broad.  The  property 
taxed  may  be  an  estate  for  a  term  of  years,  or  for  life,  or 

125  in  re  Roosevelt's  Estate,  supra. 

126  in  re  Curtis,  supra. 

127  Chapter  390,  §  3. 

12  8  143  N.  Y.  327,  3S  N.  E.  311. 
(29S) 


Ch.  6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

determinable  upon  'any  future  or  contingent  estate'  or  'a 
remainder,  reversion,  or  other  expectancy,'  and  the  tables 
of  mortality  may  be  resorted  to  for  the  ascertainment  of 
values.  And  yet,  it  is  the  'fair  market  value,'  the  'fair  and 
clear  market  value,'  which  is  to  be  assessed,  and  with  the 
proviso  that  if  that  value  cannot  be  at  once  ascertained  the 
appraisal  is  to  be  adjourned.  I  can  scarcely  imagine  a  con- 
tingency- depending  upon  lives  which  mathematics  could  not 
solve  by  the  doctrine  of  chances  and  the  averages  of  mortal- 
ity, and  there  could  hardly  be  an  adjournment  unless  upon 
come  rare  contingency  having  no  averages,  and  the  results 
in  cases  depending  upon  lives  might  still  leave  the  'fair  and 
clear  market  value'  in  doubt,  and  yield  sums  which  no  sale 
in  the  market  would  produce."  The  court  then  referred  to 
the  definition  of  the  word  "transfer"  in  section  22,129  saying: 
"It  thus  contemplates  a  present  enjoyment,  or  a  fixed  and 
absolute  right  of  future  enjoyment,  and  adjourns  the  ap- 
praisal until  the  fulfillment  of  contingencies  leaves  those 
results  attained." 

(d)  When  Appraisable  at  Death. 

Under  the  early  statutes  of  1885  and  1887,  it  was  held 
that  where,  at  the  time  of  decedent's  death,  the  value  of  the 
contingent  interest  or  remainder  could  be  ascertained,  it  was 
appraisable,  but  not  taxable.  This  rule  finds  confirmation 
in  the  language  of  the  act  of  1892.130 

The  rule  does  not,  it  seems,  conflict  with  the  preceding 
rule  (c),  but,  on  the  contrary,  in  certain  cases,  it  would  seem 

129  Laws  1S92,  c.  399. 

130  in  re  Cager's  Will,  111  N.  Y.  343,  18  N.  E.  866;  In  re  Olark 
(Suit.)  5  N.  Y.  Supp.  199;  In  re  Matthews'  Estate,  N.  Y.  Law  J. 
July  27,  1889;  In  re  Benet,  N.  Y.  Daily  Reg.  March  4,  1SS9;  In  re 
Leavitt,  4  N.  Y.  Supp.  179;  Appeal  of  Mellon,  114  Pa.  St.  573.  574, 
8  Atl.  1S3;  In  re  Mercian's  Estate,  131  Pa.  St.  346,  18  Atl.  900;  In  re 
Brewer's  Estate.  15  Pa.  Law.  J.  (N.  S.)  433,  435,  16  Pa.  Law  J.  (N.  S.) 
114;  In  re  Curtis,  142  N.  Y.  219,  36  N.  E.  S87. 

(299) 


§   58  VESTED   AND    CONTINGENT    ESTATES.  [Ch.   6 

that  an  appraisement  can  still  be  made  as  of  the  date  of 
death,  where  the  nature  of  the  contingent  interest  is  not  of 
such  a  character  as  to  preclude  or  be  incapable  of  a  valua- 
tion. It  is  only  where  it  is  impossible  or  impracticable  to 
ascertain  the  value  of  the  contingent  devise  that  no  ap- 
praisement can  be  then  had.  In  Re  Curtis,131  decided  un- 
der the  act  of  1885,  the  power  to  appraise  at  death  was 
doubted  where  the  interest  was  contingent;  but  the  court 
said,  "It  may  possibly  be  that  where  the  only  contingency  of 
the  future  is  upon  which  of  several  named  persons  or  classes 
of  persons,  all  of  whom  are  liable  to  suffer  the  taxation,  the 
beneficial  interests  will  ultimately  devolve,  the  appraise- 
ment and  assessment  need  not  be  postponed,  though  even 
that  is  hardly  a  prudent  construction,  but  need  not  now  be 
discussed." 

But  this  rule  would  seem  to  be  sanctioned  by  the  act  of 
1892  132  providing  that  the  entire  property  or  fund  by  which 
such  estate,  income,  or  interest  is  supported,  or  of  which  it 
is  a  part,  shall  be  appraised  immediately  after  such  transfer, 
or  as  soon  thereafter  as  may  be  practicable,  at  the  fair  and 
clear  market  value  thereof  at  that  time;  providing  that 
when  such  estate,  etc.,  shall  be  of  such  a  nature  that  its  fair 
and  clear  market  value  cannot  be  ascertained  at  such  time, 
it  shall  be  appraised  in  like  manner  at  the  time  when  such 
value  first  becomes  ascertainable.  The  act  thus  seems  to 
sanction  the  appraisement  where  the  value  can  be  ascer- 
tained. 

In  Re  Cager,  decided  under  the  act  of  1885,  the  court  said : 
"Where  the  present  value  of  the  property  which  is  devised 
to  one  with  a  limitation  over  to  others,  upon  the  happening 
of  some  event  which  may  or  may  not  occur,  can  be  ascer- 
tained, then  a  ground  upon  which  an  approximate  estimate 
of  the  value  of  the  ultimate  devise  appears,  and  it  may  be 

i3i  142  N.  Y.  223,  36  N.  E.  887. 
132  Chapter  399,  §§  3,  11,  13. 
(300) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §   58 

made."  And  the  act  enables  a  tax  to  be  imposed  and  col- 
lected upon  the  ulterior  devise  through  the  medium  of  a  bond 
to  be  given  by  the  respective  legatees,  payable  when  they 
come  into  possession  of  the  devised  property.133  Whether 
the  failure  in  such  a  case  to  give  the  conditional  bond  re- 
quired by  the  statute  would  make  the  tax  due  and  collectible 
immediately  has  not  been  determined  in  this  state.134 

So,  in  Re  Clark,135  where  the  question  arose  as  to  the 
liability  of  contingent  annuities  to  the  tax,  and  when  the 
tax  thereon  was  payable,  it  was  held  that,  while  the  value 
of  such  annuities  could  be  and  was  ascertainable  at  dece- 
dent's death  by  appraisement,  the  tax  thereupon  was  not 
payable  until  the  annuities  (conditioned  to  take  effect  upon 

133  Laws  1887,  §  2,  Appendix,  I.  a. 

is*  See  In  re  Peck  (Surr.)  9  N.  Y.  Supp.  465;  In  re  Clark  (Suit.)  5 
N.  Y.  Supp.  199;  In  re  Higgins'  Estate  (Dec.  7,  18S9)  36  N.  Y.  Daily 
Reg.  906.  In  cases  arising  under  this  provision  of  the  statute  of 
1887  it  does  not  seem  to  be  the  practice  in  New  York  to  enforce  the 
giving  of  the  conditional  bond,  but  it  would  appear  that  under  the 
express  language  of  the  statute  the  tax  becomes  due  and  payable 
immediately  if  the  remainder-man  fails  to  exercise  an  election  by 
filing  the  bond  within  one  year  after  the  death  of  the  decedent.  The 
point  has,  however,  never  been  determined.  See  In  re  Cooper's  Estate 
(Appeal  of  Commonwealth)  127  Pa.  St.  435,  17  Atl.  1094;  Appeal  of 
Mellon,  supra;  In  re  Willing's  Estate,  2  Wkly.  Notes  Cas.  308;  In  re 
Wharton's  Estate,  10  Wkly.  Notes  Cas.  106.  These  authorities  would 
seem  to  show  that  under  the  Pennsylvania  law  the  tax  becomes  due 
immediately  in  such  case,  for  in  Cooper's  Estate  (Appeal  of  Common- 
wealth), supra,  the  court  said:  "The  payment  of  the  tax  byremainder- 
men,  which,  before  this  act,  was  payable  at  the  death  of  the  decedent, 
may  now,  at  their  election,  be  postponed  until  they  come  into  actual 
possession,  upon  proper  security  for  its  payment."  See,  also,  In  re 
Fagely's  Estate  (Appeal  of  Commonwealth)  128  Pa.  St.  610,  18  Atl. 
386. 

1355  N.  Y.  Supp.  199  (Surr.).  See,  also,  In  re  Hopkins,  5  Dem. 
Sur.  1;  In  re  Bruce,  cited  in  4  N.  Y.  Supp.  466,  but  net  reported. 
In  te  Le  Fever,  5  Dem.  Sur.  185. 

(301; 


§    58  VESTED    AND    CONTINGENT    ESTATES.  [Ch.   6 

the  death  of  the  life  tenant  before  the  annuitants)  actually 
vested  by  the  death  of  such  life  tenant. 

Ransom,  S.,  in  referring  to  In  re  Cager,  said: 
"Nothing  is  said  about  the  assessment  or  payment  of  the 
tax,  although  the  court  said  that  contingent  estates  might 
be  appraised  if  their  value  could  be  ascertained.  The  ques- 
tion is,  can  the  tax  be  assessed  and  fixed?  The  executor 
cannot  diminish  the  funds  which  produce  the  annuities.136 
"The  contingent  annuitants  cannot  be  required  to  pay 
for  something  they  may  never  receive.  The  act  does  not 
say  that  where  property  is  left  to  A.,  an  exempt  person,  for 
life,  with  a  contingent  life  estate  to  B.,  that  A.  shall  be 
taxed  to  pay  for  B.'s  prospective  enjoyment,  even  though  B. 
may  never  receive  it.  The  act  expressly  exempts  certain 
persons,  and  taxes  others,  and  it  cannot  be  rightfully  held 
that  where  property  was  left  for  life  to  an  exempt  person, 
and,  after  his  death,  for  life  to  one  not  exempt,  should  she 
survive,  in  that  event  the  corpus  of  the  estate  which  is  ex- 
empt should  be  diminished  by  the  amount  of  the  tax  upon 
the  happening  of  an  event  which  would  not  make  the  life 
tenant  liable  to  the  tax  whether  it  did  or  did  not  happen, 
and  which,  if  the  contingency  should  fail,  might  throw  the 
estate  back  to  persons  who  were  exempt.  Neither  the  first 
estate  nor  the  last  should  be  taxed  for  the  contingent  sec- 
ond estate.  It  must  be  in  cases  such  as  this,  where  it  is 
absolutely  impossible  to  decide  to  whom  the  property  will 
go,  that  the  intention  is  that  the  appraiser  shall  report  the 
fair  market  value  of  the  property  at  decedent's  death,  and 
that  the  matter  must  be  regarded  as  suspended  until  the 
contingency  does  or  does  not  happen,  at  which  time — that 
is,  at  death  of  the  life  tenant — it  can  be  determined  to 

13  6  But  see  In  re  Johnson,  6  Dem.  Sur.  146;  In  re  Leavitt's  Estate 
<Surr.)  4  N.  Y.  Supp.  179. 
(302) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

whom  the  property  will  pass,  and  whether  or  not  it  is  sub- 
ject to  the  tax."  13T 

So,  where  decedent  left  to  a  collateral  heir  property  to  be 
given  him  when  he  arrived  at  age,  and  the  income  of  the 
fund  in  the  meantime,  with  a  proviso  that  upon  his  death 
before  reaching  21  the  whole  fund  should  become  part  of 
the  residuary  estate,  held  that,  while  the  fund  was  subject 
to  appraisement  as  of  decedent's  death,  it  was  not  subject 
to  taxation  until  the  contingency  occurred;138  but  where 
two  legatees,  husband  and  wife,  were  tenants  by  the  entirety 
under  the  will  in  certain  real  estate,  it  was  held  that,  the 
wife's  interest  being  known,  the  property  definite,  and  the 
event  certain,  and  as  she  had  an  interest  capable  of  assign- 
ment and  partition,139  her  estate  was  both  appraisable  and 
taxable  at  once.140 

(e)  Appraisable  and  Taxable  whenVesting  in  Possession  or  Enjoyment. 

Where,  in  any  case,  at  decedent's  death  no  appraisement 
of  the  estate  in  remainder  or  future  estate  can  be  had  for 
any  reason,  the  tax  may,  nevertheless,  be  imposed,  and  pay- 
ment enforced  upon  an  appraisement  had  at  the  time  the 
estate  or  interest  accrues,  to  wit,  when  it  vests  in  actual 
possession  or  enjoj'inent.141 

Under  these  acts  the  surrogate  has  power  to  appoint  an 

137  in  re  Clark,  supra.  See  In  re  Bruce,  cited  in  4  N.  Y.  Supp.  466; 
In  re  Stewart  (Surr.)  10  N.  Y.  Supp.  15;  Id.,  131  N.  Y.  281,  30  N.  E. 
184;  In  re  Le  Fever,  5  Dem.  Sur.  185. 

138  in  re  Matthew's  Estate,  N.  Y.  Daily  Reg.  July  27,  1889;  In  re 
Benet's  Estate,  N.  Y.  Daily  Reg.  March  4,  1889;  In  re  Van  Rens- 
selaer's Estate,  N.  Y.  Daily  Reg.  May  26,  1SS9;  In  re  Wilkins'  Es- 
tate, N.  Y.  Daily  Reg.  Dec.  7,  1889. 

139  Laws  N.  Y.  1880,  c.  472. 

1*0  in  re  Higgins,  36  N.  Y.  Daily  Reg.  906,  and  cases  cited  supra. 

in  In  re  Curtis,  142  N.  Y.  219,  36  N.  E.  8S7;  In  re  Roosevelt's 
Estate,  143  N.  Y.  120,  38  N.  E.  281;  In  re  Hoffman's  Estate,  143  N. 
Y.  334,  38  N.  E.  311;    Talmadge  v.  Seaman,  S5  Hun,  242,  32  N.  Y. 

(303; 


§    58  VESTED    AND    CONTINGENT    ESTATES.  [Ch.   6 

appraiser  "as  often  as  and  whenever  occasion  may  re- 
quire,"  142  to  fix  the  fair  market  value,  at  the  time  of  the 
transfer  thereof,  of  property  of  persons  whose  estates  shall 
be  liable  to  taxation;  and  where  the  estate  or  interest  is 
contingent  the  property  shall  be  appraised  immediately  after 
such  transfer,  or  as  soon  thereafter  as  may  be  practicable,1 4a 
provided  that  when  such  estate,  income,  or  interest  shall  be 
of  such  a  nature  that  its  fair  and  clear  market  value  cannot 
be  ascertained  at  such  time,  it  shall  be  appraised  in  like 
manner  at  the  time  when  such  value  first  became  ascertain- 
able. 

In  the  Cager  Case,  which  arose  under  the  act  of  1885, 
while  the  court  expressly  declined  to  determine  the  point  as 
to  whether  an  appraisal  of  the  value  of  the  contingent  es- 
tates could  be  made  when  they  eventually  came  to  the  pos- 
session of  the  devisees,  it  suggested  that  the  tax  might  be 
altogether  lost  to  the  state  if  an  appraisal  was  not  allowed 
immediately;  but  the  remarks  in  that  case  have,  it  seems, 
been  properly  treated  as  obiter,144  and  it  would  appear  that 
the  scope  and  object  of  the  provision  of  the  statute  allowing 
an  appraisement  as  often  as  and  whenever  occasion  might 
require,145  was  overlooked. 

Supp.  906,  reversed  as  In  re  Seaman  (Oct.  8,  1895;  Ct.  App.)  41  N. 
E.  401;  In  re  Stewart,  131  N.  Y.  274,  30  N.  E.  184;  Id.  (Surr.) 
10  N.  Y.  Supp.  15;  In  re  Wallace's  Estate  (Surr.)  4  N.  Y.  Supp.  465; 
In  re  Bruce,  cited  in  4  N.  Y.  Supp.  466;  In  re  Le  Fever,  5  Dem.  Sur. 
184;  In  re  Fleming,  N.  Y.  Law  J.  Oct.  15,  1S89;  In  re  Clark,  5  N.  Y. 
Supp.  199.  See  Mellon's  Appeal,  114  Pa.  St.  570,  8  Atl.  183;  In  re 
Cooper's  Estate,  127  Pa.  St.  435,  17  Atl.  1094;  In  re  Nieman's  Es- 
tate, 131  Pa.  St.  346,  18  Atl.  900,  and  cases  cited  supra,  p.  163.  Con- 
tra, but  obiter,  In  re  Cager's  Will,  111  N.  Y.  343,  18  N.  E.  866;  In 
re  Hopkins,  6  Dem.  Sur.  1. 

1-J2  Cases  supra.  And  see  Laws  1885,  c.  4S3,  §  13;  Laws  1887,  e. 
713,  §  13;    Laws  1892,  c.  399,  §  11. 

I"  Laws  1892,  c.  399,  §  11. 

14  4  In  re  Stewart,  and  cases  supra. 

145  Laws  1887,  c.  713,  §  13;    Laws  1892,  c.  399,  §  11.     See  Com. 
v.  Freedley,  21  Pa.  St.  33;  and  chapter  5,  §  55. 
(304) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

In  Re  Stewart 148  the  decedent  left  a  portion  of  her  resid- 
uary estate  to  a  trustee  with  power  of  appointment 147  to 
and  among  such  of  the  legatees  and  in  such  proportion  as 
he  might  deem  fit.  Four  years  after  her  death  the  trustee 
made  an  appointment  of  the  property  among  certain  of  the 
collateral  legatees,  who  claimed  their  shares  were  not  sub- 
ject to  taxation,  upon  the  ground  that  the  act  contemplated 
only  the  taxation  of  interests  which  accrued  at  the  dece- 
dent's death,  and  for  the  reason  that  the  shares  were  not 
determinable  until  the  power  of  appointment  had  been  exer- 
cised. Surrogate  Ransom,  in  holding  the  shares  taxable, 
said :  "It  is  true  that  at  the  date  of  the  death  of  Mrs.  Stew- 
art the  appraiser  could  not  determine  either  the  value  of  the 
estate  which  might  eventually  become  taxable,  or  the  per- 
sons to  whom  it  would  pass;  and  he  could  not,  therefore, 
make  any  appraisal.  It  has  been  the  practice  of  this  court 
to  suspend  all  proceedings  as  to  such  contingent  estates  un- 
til such  contingency  happens,  with  a  view  to  the  appoint- 
ment of  an  appraiser  at  that  time  to  make  the  appraisal.148 
The  claim  that  at  the  death  of  this  decedent  there  wTas  no 
estate  that  could  be  held  subject  to  the  tax,  and  that,  there- 
fore, there  can  be  no  tax  assessed  now,  cannot  be  sustained. 
It  is  a  well-settled  principle  of  the  law  that  where  parties 
take  under  a  power  of  appointment  they  take  under  the  in- 
strument creating  the  power,  so  that  the  parties  named  by 
H.  und'er  the  power  given  him  must  be  regarded  as  the  per- 
sons selected  by  Mrs.  Stewart.149  It  is  true  that  their  in- 
terests did  not  accrue  until  the  date  when  the  power  was 

i*«  10  N.  Y.  Supp.  15  (Suit.). 

1*7  as  to  powers,  see  post,  §  60. 

14  8  Citing  In  re  Wallace  (Suit.)  4  N.  Y.  Supp.  465;  In  re  Clark 
(Surr.)  5  N.  Y.  Supp.  199. 

149  See  In  re  Stewart,  131  N.  Y.  274,  30  N.  E.  1S4,  citing  4  Kent, 
Comm.  33S;  Jackson  v.  Davenport,  20  Johns.  537;  2  Sugd.  Powers, 
p.  22. 

LAW  1NHER. — 20  (305) 


§  58  VESTED    AND    CONTINGENT    ESTATES.  [Ch.    6 

exercised,     *     *     *     at  which  date  also  the  tax  upon  their 
interests  accrued."150 

In  confirming  this  ruling  the  court  of  appeals  said:151 
"The  contention  on  the  part  of  the  appointees  under  the 
power  is  that  the  scheme  of  the  statute  only  contemplates 
cases  where  the  interests  created  are  capable  of  valuation 
at  the  death  of  the  testator.  This  would  exclude  all  future 
contingent  interests,  in  real  or  personal  property,  created 
by  will.  Such  an  intention  certainly  was  not  in  the  mind 
of  the  legislature,  and  we  are  asked  to  exclude  this  large 
number  of  cases  from  the  operation  of  the  act  upon  a  con- 
struction which  imports  into  the  thirteenth  section152  the 
limitation  contained  in  section  2.  The  claim  of  the  ap- 
pointees under  the  power  must  be  allowed  if  the  statutes 
provide  no  scheme  for  taxation  of  contingent  and  uncertain 
interests,  although  such  interests  may  be  within  the  purview 
of  the  first  section.  It  is  not  enough  for  the  legislature  to 
declare  that  such  interests  are  taxable.  If  no  mode  is  pro- 
vided for  assessing  and  collecting  the  tax,  the  law  is  im- 
perfect, and  cannot  as  to  such  interests  be  executed.  But 
we  think  that  the  thirteenth  section  does  include  cases  like 
the  present,  and  that  contingent  interests  given  by  a  will, 
which,  after  the  death  of  the  testator,  are  converted,  by  the 
happening  of  the  event  upon  which  they  are  limited,  into 
actual  vested  estates,  may  then  be  appraised  and  taxed  un- 
der the  provisions  of  section  13.  It  is  true  that  section  4 
seems  to  contemplate  that  all  taxes  are  ascertainable  at  the 
death  of  the  decedent,  since  it  declares  that  'they  shall  be 
due  and  payable'  at  that  time,  and  provides  for  charging  in- 
terest thereon  from  'the  time  the  tax  accrued.'  We  think 
the  implication  from  this  section  ought  not  to  overbear  the 

iso  See,  also,  Com.  v.  Freedley,    supra;    Com.  v.  Williams,  13  Pa. 
St.  29. 
i5i  In  re  Stewart,  131  N.  Y.  284,  30  N.  E.  1S4. 
152  Laws  1887,  c.  713. 
(30G) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

intention  of  the  legislature,  indicated  in  section  1,  to  subject 
all  interests  derived  under  wills  to  taxation,  except  those 
within  the  exception;  nor  prevent  such  a  construction  of 
section  13  as  will  bring  the  present  case  within  its  purview." 

(f)  Estates  Taxable  under  Retroactive  Clause  New  York  Act  of  1892. 

By  the  New  York  transfer  tax  act  of  1892  153  it  seems  that 
the  tax  is,  in  some  instances,  intended  to  be  retroactive,  the 
statute  providing  that  "such  tax  shall  also  be  imposed  when 
any  such  person  or  corporation  becomes  beneficially  entitled 
in  possession  or  expectancy,  to  any  property  or  the  income 
thereof,  by  any  such  transfer,  whether  made  before  or  after 
the  passage  of  the  act."  The  provision  includes  both  trans- 
fers by  will  and  by  deed.154  While  this  is  an  important  pro- 
vision, its  meaning  and  scope  with  reference  to  the  taxation 
of  estates,  where  the  transfer,  will,  or  deed  was  made  be- 
fore, and  the  death  occurred  after,  the  passage  of  the  act, 
has  not  yet  been  passed  upon  by  the  court  of  appeals.  A 
similar  question,  however,  arose  under  the  English  succes- 
sion duty  act,  also  under  the  acts  of  congress,  to  which  we 
shall  hereafter  refer.155  The  general  rule  is  that  legislative 
acts  are  always  construed  as  prospective  in  operation,  unless, 
by  their  language,  it  appears  that  it  was  the  intention  tha+ 
they  should  have  a  retroactive  effect.156 

its 3  Chapter  399,  §  1,  subd.  3. 

is*  Talmadge  v.  Seaman.  85  Hnn.  242,  32  N.  Y.  Supp.  906,  reversing 
30  N.  Y.  Supp.  304.  This  case  has  been  argued  before  the  court  of  ap- 
peals, and  reversed  as  In  re  Seaman  (Oct.  8,  1895;  Ct.  App.)  41  N. 
E.  401.  See  In  re  Gomez,  12  N.  Y.  Law  J.  1037;  In  re  Brooks 
(Surr.)  32  N.  Y.  Supp.  177;  In  re  Tobias  (Feb.  8,  1895)  12  N.  Y.  Law 
J.  1164. 

iB5  Post,  note  170  et  seq. 

156  Sherrill  v.  Christ  Church  of  Poughkeepsie  (1890)  121  N.  Y. 
701,  25  N.  E.  50,  reversing  55  Hun,  472,  8  N.  Y.  Supp.  806;  In  re 
Miller's  Estate,  110  N.  Y.  223,  18  N.  E.  139;  In  re  Cogswell,  4  Bern. 
Sur.  248;  Talmadge  v.  Seaman  (March,  1895)  85  Hun,  242,  32  N.  Y. 
Supp.  906;    Roman  Catholic  Church  of  the  Transfiguration  v.   Niles 

(307) 


§    58  VESTED    AND    CONTINGENT    ESTATES.  [Ch.   6 

In  the  construction  of  this  portion  of  the  act  the  proper 
inquiry  would  seem  to  be  as  to  when  the  beneficial  interest 
took  effect.  If  it  vested  in  possession  upon  a  death  before 
the  act  passed,  then  clearly  it  should  not  be  held  liable  to 
taxation,157  unless  the  act  is  retroactive.  If  such  interest 
vested  after  the  passage  of  the  law,  it  is  liable,  though  cre- 
ated by  will  or  deed,  and  upon  a  death  occurring  before  the 
act  was  passed. 

But  the  words  "by  any  such  transfer,  whether  made  be- 
fore or  after  the  passage  of  the  act,"  would  seem  to  be  plain- 
ly retroactive,  so  far  as  transfers  made  before  the  passage 
of  the  act  are  concerned,  and  it  would  seem  to  have  been 
the  intention  of  the  law  to  embrace  and  include  every  tax- 
able interest  liable  at  and  prior  to  the  passage  of  the  act,  in 
order  that  no  estates  liable  under  the  former  acts  should 
escape  taxation  by  the  repeal  of  the  laws  in  existence  prior 
to  the  act  of  1892.158 

Under  a  somewhat  similar  statute  159  it  was  provided  that 
"any  property  heretofore  devised  or  bequeathed  to  any  per- 
son who  is  a  bishop,  or  to  any  religious  corporation,  shall  be 
exempted  from  and  not  be  subject  to  the  provisions  of  this 

(1S95)  86  Hun,  221,  33  N.  Y.  Supp.  243.     See  question  of  retroaction 
discussed  and  cases  cited,  chapter  2,  §  24;  chapter  8,  §  69. 

157  See  In  re  Dreyfous  (Surr.)  18  N.  Y.  Supp.  767;  In  re  Wolfe, 
66  Hun,  389,  21  N.  Y.  Supp.  515,  522;  In  re  Seaman  (Oct.  8,  1895; 
Ct.  App.)  41  N.  E.  401. 

158  See  Laws  1892,  c.  399,  §  23,  repealing  Laws  1885,  c.  483;  Laws 
1887,  c.  713;  Laws  1889,  c.  307,  479;  Laws  1S91,  c.  215.  This  in- 
tention is  shown  by  section  24  of  the  act  of  1892,  containing  a  sav- 
ing clause,  thus:  "The  repeal  of  a  law  or  any  part  of  it  specified  in 
the  annexed  schedule  shall  not  affect  or  impair  any  act  done,  or 
right  accruing,  accrued  or  acquired,  or  liability,  penalty,  forfeiture 
or  punishment  incurred  prior  to  May  1,  1S92,  under  or  by  virtue  of 
any  law  so  repealed,  but  the  same  may  be  asserted,  enforced,  prose- 
cuted or  inflicted,  as  fully  and  to  the  same  extent  as  if  such  law  had 
not  been  repealed,"  etc.    In  re  Richardson,  N.  Y.  Law  J.  Jan.  31,  1893. 

i5o  Laws  N.  Y.  1S92,  c.  169. 
(308) 


Ch.  6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

act."  160  The  effect  of  this  statute  has  been  considered  re- 
cently,161 and  it  was  substantially  held  to  be  retroactive 
upon  the  above  language.  "The  language  of  the  act  is  that 
property  which  had  theretofore  been  devised  or  bequeathed 
should  be  exempt.  The  claim  upon  the  part  of  the  defend- 
ant that  this  language  was  intended  to  apply  only  to  those 
cases  where  it  had  been  impossible  to  assess  the  tax,  because 
no  appraisement  could  be  made,  is  not  borne  out  by  any- 
thing contained  in  the  statute.  It  applies  to  all  sorts  of 
property,  in  possession  or  in  expectancy,  and  makes  no  dis- 
tinction, and  it  was  the  evident  intention  of  the  legislature 
to  release  property  which  had  been  thus  devised,  from  the 
provisions  of  the  inheritance  tax  act,  whether  such  devise 
had  become  operative  prior  to  the  passage  of  the  act  or  sub- 
sequent thereto."  162 

It  was  held  in  the  Talmadge  Case  * — the  leading  authority 
thus  far  on  this  question — that  where  the  transfer  "becomes 
beneficially  entitled,  in  possession  or  expectancy,"  to  any 
property,  "whether  the  transfer  was  made  before  or  after 
the  passage  of  the  act,  a  contingent  remainder,  which  vests 
after  the  passage  of  the  act,  though  created  by  a  will  which 
took  effect  before  that  time,  was  taxable  at  the  time  of  vest- 
ing." 163  In  that  case  testator  died  in  187G,  when  his  will 
was  admitted  to  probate.  At  the  time  of  the  making  of 
the  will,  and  at  the  time  of  death,  the  life  tenants  were  liv- 

1(10  See  Laws  1892,  c.  399,  §  2,  where  the  same  clause  is  re-en- 
acted, the  word  "hereafter"  being  included. 

i6i  Roman  Catholic  Church  of  the  Transfiguration  v.  Niles  (1895) 
86  Hun,  221,  33  N.  Y.  Supp.  243. 

162  see,  as  to  power  of  state  to  release  taxes,  People  v.  Commis- 
sioners of  Taxes,  142  N.  Y.  34S,  37  N.  E.  116. 

*  32  N.  Y.  Supp.  906;  recently  reversed  in  Court  of  App.  as  In  re 
Seaman  (Oct.  8,  1895)  41  N.  E.  401,  the  court  holding  that  the  act 
applies  to  grants  or  gifts  causa  mortis  but  does  not  embrace  or 
render  taxable  interests  taken  under  the  wills  of  testators  dying  be- 
fore the  passage  of  the  act. 

163  See  note  on  "Vesting,"  IS  Abb.  N.  C.  300.  See  supra,  section 
58,  subd.  3a,  and  notes. 

(309) 


§  58  VESTED    AND    CONTINGENT    ESTATES.  [Ch.   t> 

ing.  The  two  life  tenants  died  in  1893,  after  the  passage 
of  the  act  above  mentioned.  The  question  was,  "Did  the 
children  of  S.  become  beneficially  entitled,  in  possession  or 
expectancy,"  to  the  remainders  of  the  funds  held  in  trust 
for  the  life  tenants,  upon  the  termination  of  such  life  estate, 
and  thus  subject  their  interests  to  the  payment  of  a  tax? 
O'Brien,  J.,  in  an  able  and  elaborate  opinion  in  the  supreme 
court,  said:  "While,  in  a  strictly  legal  sense,  persons  having 
a  vested  or  contingent,  a  feasible  or  indefeasible,  a  posses- 
sory or  expectant  interest  in  property  by  will  or  deed,  may 
be  said  to  be  'beneficially  interested'  (which  has  been  regard- 
ed as  synonymous  with  'beneficially  entitled'),  and  thus  an- 
swer the  description  of  persons  who,  becoming  'beneficially 
entitled,  in  possession  or  expectancy,'  to  property  would  be 
liable  to  taxation,  we  do  not  think  this  is  the  meaning  that 
is  to  be  attached  to  the  words  as  used  in  the  act  of  1892. 
As  we  have  endeavored  to  point  out,  the  latest  expression 
of  the  court  of  appeals  favors  the  view  that  for  the  purpose 
of  taxation  one  only  becomes  beneficially  entitled  to  property 
when  the  time  arrives  that  he  has  the  title,  or  is  entitled  to 
possession,  or  when  a  contingent  interest  vests,  or  when  a 
defeasible  estate  becomes  indefeasible.  While  there  are 
objections  to,  and  possibly  hardships  in,  such  a  construction, 
by  rendering  subject  to  a  tax  an  interest  or  property  which 
was  free  therefrom  when  created,  it  nevertheless  presents 
the  most  practicable  rule  to  be  applied  in  the  construction 
of  acts  relating  to  the  taxing  of  inheritances."  This  being 
so,  one  should  not  be  liable  until  he  succeeds  to  the  prop- 
erty, and  the  injury  or  injustice  of  a  rule  that  would  hold 
one  liable  or  responsible  for  a  tax  upon  property  in  which 
he  might  have  a  contingent  interest,  but  which  might  never 
vest,  has  in  many  cases  been  pointed  out.164 
"We  think,  then,  that,  had  the  law  of  1892  been  in  exist- 

164  See  In  re  Curtis,  142  N.  Y.  219,  30  N.  B.  887;   In  re  Hoffman's 
Estate,  143  N.  Y.  334,  3S  N.  E.  311;    In  re  Roosevelt's  Estate,  143 
N.  Y  120,  38  N.  E.  281.     See  In  re  Tobias,  12  N.  Y.  Law  J.  1104. 
(310) 


Ch.   6]  VESTED    AND    CONTINGENT   ESTATES.  §    58 

ence  at  the  time  of  the  making  of  the  will  or  the  death  of 
S.,  the  interest  of  the  children  of  G.  ('remainder-men')  would 
not  then  have  been  taxable,  because  they  did  not,  within  the 
meaning  of  the  transfer-tax  act,  become  beneficially  entitled, 
in  possession  or  expectancy,  to  the  remainders  of  the  funds 
held  in  trust  during  the  lives  of  their  aunt  and  father,  re- 
spectively, until  the  termination  of  such  life  estates. 

"As  the  tax  is  a  burden  placed  permanently  on  the  suc- 
cession, and  not  upon  the  estate,  if  the  act  of  1892  had  been 
in  force  when  the  testator  died,  the  state  could  not  have  got 
its  tax,  because  there  was  no  certainty  as  to  which  of  the 
children  would  eventually  get  the  property,  and  the  matter 
would  have  had  to  be  deferred  until  the  termination  of  the 
life  estates.  Here,  before  such  termination,  the  law  of  1892 
was  enacted;  and  as,  by  its  provisions,  the  tax  was  to  be 
imposed  upon  any  one  who  became  beneficially  entitled,  in 
possession  or  expectancy,  to  any  property,  whether  the  in- 
strument under  which  such  property  was  acquired  was  made 
before  or  after  the  passage  of  the  act,  we  fail  to  see  any 
valid  reason  why  it  should  not  apply  in  the  present  in- 
stance.    *     *     * 

"By  its  language  the  act  imposes  a  tax  upon  succession  to 
property  transferred  by  will  prior  to  its  passage,  though 
the  beneficial  interest  therein  vests  subsequent  to  its  pas- 
sage; and  while  this  construction  seems  to  give  a  retroactive 
effect  to  the  act,  which  in  all  cases  should,  if  possible,  be 
avoided,  its  effect  is  retroactive  only  so  far  as  the  legal  es- 
tate is  concerned,  but  not  as  to  the  beneficial  interest,  which, 
in  this  case,  did  not  spring  into  existence  until  after  the 
passage  of  the  act,  and  thus  the  persons  entitled  to  succeed 
to  the  beneficial  enjoyment  of  the  property  became  liable 
for  the  tax.  Our  conclusions,  therefore,  are  that  this  act 
imposes  a  tax  upon  successions  to  property  transferred  by 
will  before  the  passage  of  the  act,  whenever  any  beneficial 
interest  therein  vests  subsequent  to  its  passage." 

Where  decedent  died  in  1859,  giving  his  daughter  a  life 

(311) 


§    58  VESTED    AND    CONTINGENT    ESTATES.  [Ch.   G 

interest  in  a  trust  fund,  with  power  of  appointment  over 
the  principal  of  the  fund  by  will,  and  the  daughter  died  in 
1893,  appointing  the  fund,  it  was  held  liable  to  taxation  un- 
der the  above  provision  as  against  the  beneficiaries  under 
the  power.165 

In  another  case  the  testatrix  died  in  1S19,  when  her  will 
was  admitted  to  probate.  She  devised  her  residuary  estate 
to  her  executors  in  trust,  to  receive  the  income  thereof  and 
pay  the  same  to  her  daughter  E.  during  the  life  of  the  latter, 
and,  upon  her  death,  leaving  lawful  issue,  then  to  convey 
the  said  trust  estate  to  such  issue;  and  in  case  of  the  death 
of  E.  without  issue,  leaving  the  testatrix's  daughter  M.  sur- 
viving, the  trust  was  to  continue  during  the  life  of  M.,  the 
income  to  be  applied  to  her  support,  and  after  her  decease 
the  trustees  were  to  transfer  and  convey  the  said  trust  fund 
to  the  children  and  lawful  heirs  of  H.,  a  deceased  brother  of 
testatrix,  to  share  and  share  alike  per  stirpes.  Both  daughters 
died  without  leaving  issue.  E.  died  in  March,  1885,  and  M.  in 
December,  1893.  In  following  the  case  of  Talmadge  v.  Sea- 
man, f  the  surrogate  said:  "In  the  present  case  it  could  not 
be  determined  who  would  become  entitled  to  the  eventual 
estate,  upon  the  decease  of  the  surviving  life  beneficiary,  till 
that  event  happened;  and,  therefore,  there  was  no  vesting, 
at  the  time  when  the  will  took  effect,  which  would  have  au- 
thorized the  collection  of  the  tax  from  these  contingent  dev- 
isees at  that  time,  had  the  act  of  1892  been  then  in  force. 
No  distinction  in  principle  has  been  drawn  by  parties  to  this 
proceeding  between  this  case  and  Talmadge  v.  Seaman"; 
and,  upon  authority  of  that  case,  the  surrogate  denied  an 
application,  by  collateral  relatives  of  decedent,  for  an  adju- 

165  in  re  Brooks'  Estate  (Suit.)  32  N.  Y.  Supp.  176,  citing  Jackson 
v.  Davenport,  20  Johns.  551;  In  re  Stewart,  131  N.  Y.  274,  30  N.  E. 
184;  Attorney  General  v.  Upton,  L.  R.  1  Exch.  224;  In  re  Tobias, 
supra. 

f  32  N.  Y.  Supp.  906. 
(312) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

dication  that  the  real  estate  passing  to  them  under  the  will 
was  not  subject  to  any  transfer  tax.166 

It  has  been  also  held  that  the  liability,  in  the  case  of  a 
transfer  after  the  passage  of  the  act  of  1892,  is  imposed,  in 
respect  to  the  estate  or  interest  which  the  party  entitled 
thereto  acquires,  immediately  upon  the  creation  and  incep- 
tion of  his  interest,  and  not  in  regard  to  the  character  it  may 
ultimately  assume.  If  the  interest  or  estate  so  acquired 
entitled  its  possessor  to  the  immediate  possession  thereof, 
the  liability  to  the  tax,  and  the  obligation  to  pay  it,  at  once 
attached.  Where  the  interest  or  estate  so  acquired  was  an 
estate  or  interest  in  expectancy,  the  liability  to  the  tax  im- 
mediately attached,  although,  if  such  estate  or  interest  was 
of  a  contingent  character,  this  liability  might  never  become 
fixed  or  ripen  into  an  actual  obligation.  The  event  upon 
which  the  vesting  of  an  absolute  title  or  the  acquisition  of 
the  possession  depended  might  never  happen,  and,  in  conse- 
quence, the  beneficiary  might  never  get  anything.  The  event 
might,  however,  so  turn  out  that  what  had  been  a  contingent 
had  become  a  vested  estate,  with  the  right  of  possession 
postponed.  In  such  case  the  tax  would  accrue  and  be  pay- 
able upon  the  happening  of  the  event.167  Neither  this  cir- 
cumstance nor  the  fact  that  the  cases  cited  decide  that  no 
tax  can  be  imposed  or  levied,  in  respect  to  certain  contingent 
interests,  until  they  have  actually  come  into  possession,  is 
opposed  to  the  views  above  expressed  as  to  the  taxability  of 
expectant  interests  and  estates.  The  tax  is  imposed  by  the 
act  with  respect  to  these  estates  immediately  upon  their 
creation;  but  where  the  interests  are  uncertain  and  con- 
tingent the  tax  is  postponed  until  the  happening  of  the 
event.     These  are  the  same  interests  that  are  in  like  man- 

166  in  re  Gomez,  12  N.  Y.  Law  J.  1637. 

i«7  Laws  1892,  c.  399,  §§  3-11;  In  re  Curtis,  142  N.  Y.  120,  36  N.  E. 
837;  In  re  Hoffman's  Estate,  143  N.  Y.  327,  38  N.  E.  311;  In  re 
Roosevelt's  Estate,  143  N.  Y.  120,  38  N.  E.  281. 

(313) 


§    58  VESTED    AND   CONTINGENT   ESTATES.  [Ch.   6 

ner  made  subject  to  the  tax  where  they  have  been  acquired 
by  the  beneficiaries,  subsequently  to  the  passage  of  the  act, 
by  a  transfer  previously  made.  It  is  with  reference  to  the 
character  of  the  interest  or  estate  at  the  time  of  its  origin 
or  creation,  and  not  what  eventually  may  turn  out  to  be  its 
character,  that  the  tax  is  imposed,  in  the  case  of  a  transfer 
before,  as  in  the  case  of  a  transfer  after,  the  passage  of  the 
act;  and  in  both  cases  such  interest  or  estate  must  have  had 
its  origin  and  inception  subsequently  to  the  passage  of  the 
act.  Expectant  estates,  whether  vested  or  contingent,  ex- 
isting at  the  time  of  the  passage  of  the  act,  although  they 
have  afterwards  become  vested  in  interest  or  possession, 
are,  therefore,  not  subject  to  the  tax  by  the  provision  in 
question.168 

These  views,  and  those  expressed  in  other  cases,169  seem 
to  conflict  in  some  particulars  with  the  rule  settled  in  the 
Talmadge  Case  in  the  construction  of  this  statute,  and  also 
with  the  construction  of  a  somewhat  similar  provision  con- 
tained in  the  English  succession  duty  act  of  1353.170 

This  section  has  been  held  to  be  sufficiently  comprehen- 
sive to  include  any  benefit  derived  by  any  person,  whether 

168  in  re  Tobias,  12  N.  Y.  Law  J.  1164,  per  Fitzgerald,  S. 

169  In  re  Forsythe  (1S94;    Suit.)  32  N.  Y.  Supp.  175;   In  re  Tobias, 
supra. 

i7o  ig  &  17  Vict.  c.  51,  §  2:  "Every  past  or  future  disposition  of 
property,  by  reason  whereof  any  person  has  or  shall  become  bene- 
ficially entitled  to  any  property,  or  the  income  thereof,  upon  the 
death  of  any  person  dying  after  the  time  appointed  for  the  com- 
mencement of  this  act,  either  immediately  or  after  any  interval, 
either  certainly  or  contingently,  and  either  originally  or  by  way  of 
substitutive  limitation,  and  every  devolution  by  law  of  any  bene- 
ficial interest  in  property,  or  the  income  thereof,  upon  the  death 
of  any  person  dying  after  the  time  appointed  for  the  commencement 
of  this  act,  to  any  other  person,  in  possession  or  expectancy,  shall 
be  deemed  to  have  conferred  or  to  confer  on  the  person  entitled  by 
reason  of  any  such  disposition  or  devolution  a  'succession';  and  the 
term  'successor'  shall  denote  the  person  entitled,  and  the  term  'pred- 
(314) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

taking  his  title  from  a  testator  who  died  before  or  after  the 
act,  provided  he  succeeds  in  consequence  of  a  death  taking 
place  subsequently.171 

Under  this  act  a  question  was  raised  as  to  whether  a  suc- 
cession was  created  and  duty  attached  on  estates  in  which  a 
person  had  a  vested  interest  subject  to  the  life  interest  of 
another  who  died  after  the  act,  and  several  decisions  have 
been  made,  the  most  important  of  which  is  Wilcox  v. 
Smith,172  in  which  the  testator,  who  died  in  1827,  left  real 
estate  to  his  son  for  life,  who  died  in  July,  1853,  on  whose 
death  the  estate  passed  to  his  son,  the  testator's  grandson, 
who  was  held  to  be  liable  to  succession  duty.173 

In  another  case  the  testator  died  in  the  year  1S03,  be- 
queathing a  certain  sum  of  money,  in  which  he  gave  a  life 
interest  to  his  daughter,  and  on  her  death  the  capital  to  her 
children,  who,  therefore,  took  a  vested  interest  at  testator's 
death.  She  died  in  June,  1854,  and  it  was  held  that  a  suc- 
cession was  created  within  the  meaning  of  the  act,  and  that 
the  children  were  liable  to  duty.174 

Under  the  same  act  it  has  been  held  that  the  appointee, 
under  a  general  power  of  appointment  which  has  taken  ef- 
fect on  a  death  happening  since  the  commencement  of  the 
act,  takes  a  succession  from  the  donee  of  the  power,  and  is 
liable  to  duty.175  So,  under  the  federal  succession  tax  act, 
a  tax  was  imposed  on  the  disposition  of  real  estate,  past  or 
future,  by  deed,  will  or  the  laws  of  descent,  whereby  any 

ecessor'  shall  denote  the  settlor,  disponer,  testator,  obligor,  ancestor, 
or  other  person  from  whom  the  interest  of  the  successor  is  or  shall 
be  derived."     See  chapter  1,  §  4. 
i7i  Layton,  Leg.  Duty  (9th  Ed.)  122. 

172  26  Law  J.  Ch.  596. 

173  See,  also,  Attorney  General  v.  Lord  Middleton,  27  Law  J.  Exch. 
229;  Attorney  General  v.  Fitzjohn,  2  Hurl.  &  N.  465;  Ring  v.  Jar- 
man,  L.  R.  14  Eq.  357;   Attorney  General  v.  Gell,  3  Hurl.  &  C.  615. 

174  Attorney  General  v.  Fitzjohn,  supra. 

175  Attorney  General  v.  Upton,  L.  R.  1  Exch.  224. 

(315) 


§    58  VESTED    AND    CONTINGENT    ESTATES.  [Ch.   6 

person  became  beneficially  entitled,  in  possession  or  ex- 
pectancy, to  real  estate,  or  the  income  thereof,  after  June  30, 
1804.  It  was  held  that,  where  the  property  was  devised 
before  the  passage  of  the  act  to  one  for  life,  remainder  to 
another,  and  the  tenant  for  life  died  after  the  act  went  into 
effect,  the  tax  accrued  on  the  interest  of  the  remainder-man 
at  that  time,  for  the  reason  that  the  succession  or  devolution 
took  place  on  the  death  of  the  life  tenant* 

(d)  Under  Pennsylvania  Statutes. 

The  recent  statute  of  this  state  176  embodies  what  seems 
to  be  a  fair  and  just  enactment  regulating  the  imposition 
of  the  tax  upon  property  passing  to  life  tenants  and  remain- 
der-men, and  in  respect  to  these  estates  the  provisions  of  the 
statute  are  simple  but  comprehensive.  The  act  applies  to 
all  estates  made  or  intended  to  take  effect  in  possession  or 
enjoyment  after  the  death  of  a  decedent; 177  and  where  the 
taxable  estate  is  devised  to  take  effect  in  possession,  or  to 
come  into  actual  enjoyment  after  the  expiration  of  one  or 
more  life  estates  or  a  period  of  years,  the  tax  shall  not  be 
payable  or  interest  run  thereon  until  the  person  liable  shall 
come  into  actual  possession  of  such  estate  by  the  termina- 
tion of  the  estates  for  life  or  years.  The  tax  is  assessed  at 
the  time  the  right  of  possession  accrues,  provided  that  the 
owner  shall  have  the  right  to  pay  the  tax  at  any  time  prior 
to  his  coming  into  possession,  and  in  such  cases  the  tax  shall 

*  See  supra,  §  58,  subd.  b;  Wright  v.  Blakeslee,  101  U.  S.  174; 
Clapp  v.  Mason,  94  U.  S.  589,  23  Int.  Rev.  Rec.  144;  Mason  v. 
Sargent,  104  U.  S.  689;  Id.,  23  Int.  Rev.  Rec.  155,  Fed.  Cas.  No. 
9,253;  Blake  v.  McCartney,  4  Cliff.  101,  10  Int.  Rev.  Rec.  13,  Fed. 
Cas.  No.   1,498. 

17  6  Appendix,  III.,  Laws  1.887,  p.  79,  §  1.  For  Acts  1849,  1850,  and 
1855,  see  chapter  5,  §  54,  subd.  c,  p.  130,  note,  criticised  in  Kintzing 
v.  Hutchinson,  34  Leg.  Int.  365,  Fed.  Cas.  No.  7,834.  For  statutes  of 
Maryland  and  Connecticut,  see  Appendix,  VII.,  VIII. 

17  7  Laws  1887,  p.  79,  §  3. 
(316) 


Ch.    6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

be  assessed  on  the  value  of  the  estate  at  the  time  of  the 
payment  of  the  tax,  after  deducting  the  value  of  the  life 
estate  or  estate  for  years. 

Before  considering  the  subject  of  remainders,  it  may  be 
well  to  state  here  that  the  liability  to  the  tax  under  the 
statute  is  to  be  determined,  not  by  the  amount  of  the  legacy, 
but  by  the  amount  of  the  whole  estate.  The  exemption 
clause  of  the  statute  providing  that  "no  estate  which  may 
be  valued  at  a  less  sum  than  $250  shall  be  subject  to  the 
duty  or  tax"  178  refers  to  the  whole  estate,  and  not  to  lega- 
cies, devises,  or  distributive  shares  carved  therefrom. 

Hence,  where  testator  bequeathed  seven  legacies  of  f  200 
each  to  seven  charities,  and  the  legacies  amounted  in  the 
aggregate  to  an  estate  exceeding  $250,  each  of  the  legacies 
was  held  chargeable  with  the  tax.179  The  same  rule  is  now 
applied  under  the  New  York  act  of  1892.180 

The  statute  requires  the  owner  of  any  personal  estate  lia- 
ble to  the  tax  to  file  a  bond  for  its  payment  and  in  case  of 
failure  so  to  do  makes  the  tax  immediately  payable  and  col- 
lectible.181 

The   liability   of  remainder-men   under   the   statutes   of 

its  Act  May  6,  1887,  Appendix,  III. 

179  in  re  Howell's  Estate  (1S92)  147  Pa.  St.  164,  23  Atl.  403;  In  re 
Mister's  Estate  (1891)  10  Pa.  Co.  Ct.  R.  409,  overruling  Com.  v.  Kerch- 
ner,  6  Pa.  Law  Rev.  308;  In  re  Evans'  Estate  (1891)  8  Pa.  Law.  Rev. 
321.  See  elaborate  notes  on  this  subject  by  S.  H.  Thomas,  Esq.,  10 
Pa.  Co.  Ct.  R.  409,  and  by  C.  B.  Penrose,  Esq.,  49  Leg.  Int.  26. 

iso  in  re  Hoffman's  Estate,  143  N.  Y.  334,  38  N.  E.  311;  In  re  Hall 
(Sup.)  34  N.  Y.  Supp.  616;   chapter  3,  §  41. 

isi  As  to  the  extent  to  which  this  statute  repeals  or  modifies  the 
former  law  of  Pennsylvania,  it  has  been  held  that  the  act  does  not 
make  any  other  or  different  estates  liable,  and  that  it  is  a  codification 
of  the  prior  law  and  decisions.  See  In  re  Del  Busto's  Estate,  23 
Wkly.  Notes  Cas.  Ill,  where  all  the  statutes  are  carefully  collated 
and  explained  by  Penrose,  J. ;  In  re  Cooper's  Estate  (Appeal  of  Com- 
monwealth) 127  Pa.  St.  435,  17  Atl.  1094,  affirming  Cooper  v.  Com., 
5  Pa.  Co.  Ct.  R.  271;  In  re  Bittinger's  Estate  (Appeal  of  Common- 

(317) 


§    58  VESTED    AND   CONTINGENT    ESTATES.  [Ch.  6 

Pennsylvania,  which  have  already  been,  to  some  extent,  nec- 
essarily considered  in  the  previous  chapter  on  appraisement, 
may  be  stated  as  follows: 182 

(1)  Under  the  earl}-  statutes  in  force  prior  to  1850  the  tax 
and  interest  thereon  accrued  and  became  payable  immedi- 
ately upon  the  decease  of  the  person  whose  estate,  passing 
to  collateral  heirs  or  strangers,  was  subject  thereto,  whether 
the  estate  passed  in  actual  enjoyment  directly,  or  remotely 
upon  the  termination  of  an  intervening  life  estate  or  term  of 
years,  subject,  however,  to  a  deduction  of  the  value  of  the 
outstanding  life  or  other  estate.183 

wealth)  129  Pa.  St.  338,  18  Atl.  132.  As  to  constitutionality  of  act 
of  1887,  see  chapter  2,  §§  15,  29,  and  cases  supra. 

182  For  acts  of  1849,  1850,  and  1855  see  chapter  5,  §  54,  subd.  c,  note 
149,  and  1  Purd.  Dig.  215,  216.  The  act  of  April  7,  1826  (section  1), 
provided  that  all  estates,  real,  personal,  and  mixed,  of  every  kind 
whatever,  passing  from  any  person  who  may  die  seised  or  possessed 
of  such  estate,  being  within  this  commonwealth,  either  by  will  or  un- 
der intestate  laws  thereof,  or  any  part  of  such  estate  or  estates,  or  in- 
terest therein,  transferred  by  deed,  grant,  bargain,  or  sale  made  or  in- 
tended to  take  effect  in  possession  or  enjoyment  after  the  death  of 
the  grantor  or  bargainor  to  any  person  or  persons  or  body  politic  or 
corporate,  in  trust  or  otherwise,  for  the  use  of  father,  mother,  hus- 
band, wife,  children,  and  lineal  descendants  born  in  lawful  wedlock, 
shall  be  and  they  are  hereby  made  subject  to  a  tax  or  duty  of  $2.50  of 
the  clear  value  of  such  estate  or  estates,  and  at  and  after  the  same 
rate  for  any  less  amount,  to  be  paid  to  the  use  of  the  commonwealth; 
and  all  executors  and  administrators  and  their  sureties  shall  only  be 
discharged  from  their  liability  for  the  amount  of  any  and  all  such 
duties  on  estates,  the  settlement  of  which  they  may  be  charged  with 
by  having  paid  the  same  over  for  the  use  aforesaid,  as  herein  di- 
rected. 

183  Com.  v.  Smith,  20  Pa.  St.  100,  105;  Mellon's  Appeal,  114  Pa.  St. 
564,  570,  8  Atl.  183;  In  re  Cooper's  Estate,  127  Pa.  St.  435,  17  Atl. 
1094;  Fagely's  Estate,  128  Pa.  St.  603,  18  Atl.  386;  Willing's  Estate, 
33  Leg.  Int.  54,  2  Wkly.  Notes  Cas.  308;  Del  Busto's  Estate,  23  Wkly. 
Notes  Cas.  Ill;  James'  Appeal,  2  Del.  Co.  Rep.  164;  Cullen's  Estate, 
26  Wkly.  Notes  Cas.  216. 

(318) 


Ch.    6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

The  same  rule  prevailed  in  North  Carolina.184  The  words 
"all  estates  of  every  kind  whatsoever"  were  held  sufficiently 
comprehensive  to  include  a  remainder.185 

Under  this  rule,  where  the  testator  devised  his  land  to  his 
sister  for  life,  the  proceeds  at  her  death  to  be  divided  be- 
tween brothers  and  sisters  then  living,  and  not  to  the  heirs 
of  such  as  were  dead,  it  was  held  that  under  the  act  of  1820 
the  whole  estate  was  taxable  immediately  after  the  tes- 
tator's death,  and  was  then  collectible  from  his  executors.186 

(2)  But,  as  we  have  already  seen,187  this  condition  of  the 
law,  by  which  a  tax  was  imposed  upon  estates  in  remainder 
immediately  upon  the  decedent's  death,  and  where  the  es- 
tate might  never  vest  in  possession,  and  its  value  to  the 
remainder-man  was  often  problematical,  was  felt  to  be  un- 
just.188 

(3)  To  remedy  this,  two  statutes  were  passed,  one  in  1850 
and  the  other  in  1855,189  by  the  former  of  which,  in  case  of 
a  remainder  or  reversionary  interest  after  an  estate  for  life 
or  years,  the  person  entitled  in  remainder  might  elect  to 
await  the  actual  coming  into  possession  of  his  estate  before 
paying  the  tax;  and  in  such  case  he  was  to  give  security  to 
the  register  for  its  payment.190  By  act  of  1855  it  was 
provided  that  the  penalty  for  nonpayment  of  the  tax  should 
not  be  charged  in  any  case  against  the  party  entitled  in  re- 
mainder or  reversion  until  his  interest  should  come  into 
actual  possession  and  enjoyment,  and  "that,  if  such  legatee 

184  Attorney  General  v.  Pierce  (1861)  6  Jones,  Eq.  241. 
iss  Com.  v.  Smith,  20  Pa.  St.  103;   James'  Appeal,  2  Del.  Co.  Rep. 
164. 

186  Com.  v.  Eekert,  supra. 

187  Chapter  5,  §  54,  subds.  c,  2. 

188  gee  Mellon's  Appeal,  114  Pa.  St.  570,  571,  8  Atl.  183;  Cooper's 
Estate,  127  Pa.  St.  435,  17  Atl.  1094. 

189  Chapter  5,  §  54,  subds.  c,  2. 
i»o  id. 

(319) 


§   58  VESTED   AND   CONTINGENT    ESTATES.  [Ch.   t> 

or  devisee  shall  elect  to  pay  such  tax  in  anticipation  of  the 
same  coming  into  actual  possession  and  enjoyment,  the 
same  shall  be  received  at  the  then  valuation  of  the  legacy 
or  devise,  deducting  the  value  of  the  life  estate  or  term  of 
years." 

While  these  statutes  empowered  the  remainder-man  or  his 
trustee,  in  their  discretion,  to  postpone  payment  of  the  tax 
upon  complying  with  certain  conditions  191  as  regards  the 
filing  of  a  bond  and  an  inventory  within  a  year  after  dece- 
dent's death,  the  right  to  an  appraisement  of  such  estates 
by  the  register  immediately  upon  the  death  of  the  decedent 
was  not  taken  away  192  until  the  act  of  1887  came  into 
effect,  by  which  it  is  now  plainly  provided  that  the  tax  shall 
be  assessed  at  the  time  the  right  of  possession  accrues.  In 
this  respect  the  ruling  in  Mellon's  Appeal 193  seems  to  have 
been  modified  by  express  legislative  sanction,  and  the  con- 
struction previously  placed  upon  the  act  of  1855  by  several 
cases  in  the  lower  courts  194  was  adopted.  Hence,  not  only 
the  payment  of  the  tax  upon  estates  in  remainder,  but  the 
appraisement  thereof,  are  now  postponed  until  the  estate 
vests  in  actual  possession  or  enjoyment.195  Both  proceed- 
ings are,  therefore,  made  to  take  place  contemporaneously. 
Where,  however,  the  life  estate  is  not  ended,  the  tax  on 
remainder  is  not  demandable,  but  an  assessment  should  be 
made.196 

Two  instances,  at  least,  however,  exist  in  which  the  com- 
monwealth would  seem  to  have  the  right  to  an  immediate 

i9i  See  Wharton's  Estate,  10  W.  N.  C.  105;  Willing's  Estate,  supra; 
Cooper's  Estate,  supra. 

192  Mellon's  Appeal,  114  Pa.  St.  465,  8  Atl.  183;  James'  Appeal,  2 
Del.  Co.  Rep.  164.  Contra,  McGeary's  Estate,  14  Pa.  Law  J.  (N.  S.) 
174;  Wharton's  Estate,  supra.     Chapter  5,  §  54,  subd.  c. 

193  H4  Pa.  St.  570,  571,  8  Atl.  183. 

194  McGeary's  Estate,  supra. 

195  See  Cooper's  Estate,  127  Pa.  St.  435,  17  Atl.  1094. 

196  Budd's  Estate  (1SU2J  12  Pa.  Co.  Ct.  R.  476. 
(320) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

payment  of  the  tax:  First,  where  the  remainder-man  de- 
sires to  anticipate  payment,  or  to  elect  to  pay  the  tax  be- 
fore his  estate  vests  in  possession  or  enjoyment,  in  which 
event  the  statute  provides  that  the  tax  shall  be  imposed 
upon  the  value  of  his  remainder  at  the  time  of  payment, 
deducting  the  value  of  the  preceding  estate;197  second, 
where  the  remainder-man  omits  or  neglects,  within  a  year 
from  the  testator's  death,  to  file  the  bond  and  inventory 
required  by  the  statute  in  order  to  postpone  payment  of  the 
tax.  Such  neglect  showing  a  failure  on  his  part  to  avail 
himself  of  the  statutory  right  of  election,  under  the  terms 
of  the  law  the  tax  becomes  immediately  payable  and  col- 
lectible.198 We  have  already  discussed  the  method  or  rule 
of  appraisement  under  this  provision,199  but  no  authority 
seems  to  exist  construing  this  clause  of  the  statute. 

The  most  recent  construction  of  the  law  with  reference 
to  the  liability  of  estates  in  remainder  and  the  rights  of 
remainder-men  was  made  by  the  supreme  court  in  Re 
Cooper's  Estate,200  where  in  construing  the  early  statutes 
in  connection  with  the  act  of  18S7,  the  court  said: 

"Thus,  the  payment  of  the  tax  by  remainder-men,  which 
before  this  act 201  was  payable  at  the  death  of  decedent, 
may  now,  at  their  election,  be  postponed  until  they  come 
into  the  actual  possession,  upon  proper  security  for  its  pay- 
ment. *  *  *  In  estates  liable  to  the  collateral  tax,  the 
commonwealth  is  entitled  to  a  tax  on  the  entire  estate. 
That  when  the  tenant  for  life  or  years — being  parent  or 

197  Cooper's  Estate,  supra;  page  138,  c.  5,  §  54. 
las  Appendix,  III.  §  3. 

199  Page  13G,  c.  5,  §  54,  subd.  c. 

200  127  Pa.  St.  435,  439,  17  Atl.  1094  (1SS9).  See,  also,  Appeal  of 
Mellon  (1SSG)  114  Pa.  St.  572,  S  Atl.  183;  In  re  Willing's  Estate,  2 
Wkly.  Notes  Cas.  307;  In  re  McGeary's  Estate,  14  Pa.  Law  J.  (N.  S.) 
174. 

201  p.  L.  1S50,  p.  170. 

LAW  INHER.  —  21  (321) 


§    58  VESTED    AND    CONTINGENT    ESTATES.  [Ch.   6 

lineal  descendant,  etc. — is  exempt  from  liability,  the  whole 
tax  on  the  entire  estate  must  be  paid  by  tenant  in  re- 
mainder. That  in  such  cases  the  time  of  payment  is  post- 
poned until  the  estate  comes  into  actual  possession  of  the 
tenant  liable.  That  nevertheless,  if  such  tenant  elect,  in 
anticipation,  to  pay  at  the  death  of  the  decedent,  the  tax 
is  assessable  on  the  then  valuation  of  the  entire  estate,  less 
the  value  of  the  estate  for  life  or  years, — that  is,  when  the 
tenant  of  the  intermediary  estate  is  not  liable, — the  tenant 
in  remainder  has  the  election  either  to  pay  the  tax  on  the 
entire  estate,  with  interest,  when  he  comes  into  actual  pos- 
session, or  to  pay  at  the  death  of  the  decedent  on  the 
then  valuation  of  the  estate  in  remainder;  and,  in  consid- 
eration of  such  anticipated  payment,  her  right  to  the  tax 
on  the  intermediate  estate  is  waived  by  the  commonwealth." 
It  was  further  held  that  no  substantial  change  in  these 
respects  was  made  by  the  act  of  1887,  and  that  if,  under  that 
act,  tenant  in  remainder  desires  to  pay  the  tax  at  any  time 
prior  to  his  coming  into  possession,  it  is  to  be  assessed  on 
the  value  of  the  estate  at  the  time  of  payment  of  the  tax, 
after  deducting  the  value  of  the  preceding  estate;  and  that 
the  value  of  the  estate  of  the  remainder-man  depends  upon 
the  clear  value  of  the  estate  that  passes  from  the  person 
who  died  seised,  and  the  probable  duration  of  the  preceding 
life  estate.202  So  that,  under  the  recent  statute  and  rul- 
ings, the  only  responsibility  which  tenant  in  remainder  now 
assumes  upon  the  death  of  his  testator  is,  if  he  would  post- 
pone payment,  either  to  give  the  bond  and  accompanying 
inventory  for  the  payment  of  the  tax  when  the  estate  vests 
in  possession,  or  pay  the  tax  immediately  in  anticipation. 
The  year  given  to  the  remainder-man  in  which  to  do  either 
one  of  these  acts  affords  him  ample  time  to  exercise  his 
judgment  with  respect  to  the  condition  of  the  estate. 

202  in  re  Cooper's  Estate  (Appeal  of  Commonwealth),  supra. 
(322) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    58 

Under  the  acts  existing  prior  to  1887,  it  was  held  that 
for  certain  purposes — such  as  the  statute  of  limitations, 
interest,  and  penalty — the  tax  accrued  upon  the  devolution 
of  the  estate  that  was  subject  thereto,  to  wit,  at  decedent's 
death.203  And  this  rule  was  applied  both  to  estates  in 
possession  or  expectancy.  Under  the  act  of  1887,  it  would 
seem,  so  far  as  estates  in  remainder  are  concerned,  the  tax 
only  accrues  when  the  remainder-man  becomes  vested  with 
the  possession  of  his  estate,  and  no  interest  charges  now  at- 
tach until  the  estate  so  vests  in  possession  by  the  termina- 
tion of  the  preceding  estate.  The  intent  of  the  statute  is 
that  the  tax  accrues  at  decedent's  death,  unless  enjoyment 
is  postponed  by  a  life  estate  in  another,  and,  except  in  the 
case  of  such  postponed  adjournment,  the  value  at  the  time 
of  testator's  death  is  the  basis  for  calculating  the  amount 
of  the  tax.204 

As  has  already  been  shown,205  it  would  seem  to  be  to  the 
interest  of  the  remainder-man,  as  a  general  rule,  to  antici- 
pate payment  of  the  tax  upon  his  estate  before  it  comes  into 
possession,  because,  as  the  value  of  the  outstanding  life 
estate  is  to  be  deducted,  the  residue,  being  the  interest  of 
the  remainder-man,  is  alone  taxable.  If,  however,  the  re  - 
mainder-man  waits  until  his  estate  vests  in  possession,  he 
must  pay  tax  upon  the  full  value  of  the  estate  coming  to 
him  upon  the  death  of  the  life  tenant.  Thus,  a  testator 
leaves  an  estate  which  we  will  assume  is  worth  |5,000. 
Supposing  the  life  tenant's  interest  to  be  $2,000,  and  the 
remainder-man's  interest  at  the  testator's  death  $3,000.  By 
paying  the  tax  immediately,  the  remainder-man  pays  upon 
the  latter  amount,  but  by  waiting  until  the  death  of  the 
life  tenant  the  remainder-man  pays  upon  the  net  value  of 

203  Appeal  of  Mellon,  114  Pa.  St.  572,  S  Atl.  183.  But  see  Iu  re 
Cooper's  Estate  (Appeal  of  Commonwealth),  supra. 

204  in  re  Lines'  Estate  (1S93)  153  Pa.  St.  3TS,  20  Atl.  72S. 
zoo  Chapter  5,  §  54,  note. 

(323) 


§    58  VESTED    AND    CONTINGENT    ESTATES.  [Cll.    6 

the  whole  estate  coining  to  him  at  the  time  the  right  of 
possession  accrues,  i.  e.  at  the  death  of  the  life  tenant,  and 
thus  upon  the  full  amount  of  f  5,000;  assuming,  of  course, 
that  the  value  of  the  interest  in  remainder  has  not  at  that 
time  considerably  depreciated. 

The  tax  is  imposed,  not  upon  the  identical  property  pass- 
ing to  the  remainderman,  but  upon  its  net  value;  that  is, 
upon  the  sum  representing  the  interest  of  his  estate,  after 
deducting  all  lawful  debts  and  obligations  against  the 
estate  of  the  testator.206 

The  tax  is  imposed  only  on  what  remains  for  distribution 
after  all  the  expense  of  administration  debts  and  rightful 
claims  of  third  parties,  domestic  as  well  as  foreign,  have 
been  paid  or  provided  for.  It  is  only  the  net  balance  that 
is  liable.207  This  does  not  include  the  expense  of  counsel 
in  litigation  among  persons  claiming  as  distributees  of  the 
decedent's  estate.208  The  income  derived  from  the  estate 
of  a  decedent  during  the  first  year  after  his  death  is  not  sub- 
ject to  tax,  although  by  direction  of  decedent's  will,  added 
to  the  principal,  and  both  principal  and  income  applied  in- 
discriminately to  the  payment  of  expenses,  etc.  The  tax 
fastens  upon  so  much  of  the  estate  as  passes  to  collaterals 
as  it  stands  at  the  death  of  the  testator.  It  comes  out  of 
the  corpus  of  the  gift  upon  its  descent  or  transmission,  upon 
the  death  of  the  former  owner,  to  the  beneficiary.  Income 
accruing  subsequently  comes  not  from  the  testator  or  in- 
testate, but  from  the  property  held  by  or  for  the  use  of  the 
legatee  or  other  beneficiary.209 

206  in  re  Cooper's  Estate  (Appeal  of  Commonwealth)  127  Pa.  St. 
440,  17  Atl.  1094;  In  re  Fagely's  Estate  (Appeal  of  Commonwealth) 
128  Pa.  St.  613,  18  Atl.  3S6;  In  re  Lines'  Estate,  155  Pa.  St.  379,  2G 
Atl.  72S;  and  cases  cited  chapter  5,  §  52;   c.  4,  §  49. 

207  in  re  Lines'  Estate  (1893)  155  Pa.  St.  37S,  26  Atl.  72S;  In  re 
Coleman's  Estate  (1S93)  159  Pa.  St.  231,  28  Atl.  137. 

208  in  re  Lines'  Estate  (1893)  155  Pa.  St.  37S,  26  Atl.  72S. 

209  in  re  Williamson's  Estate  (1893)  153  Pa.  St.  508,  26  Atl.  246,  re- 
(324) 


Ch.   6]  VESTED    AND   CONTINGENT    ESTATES.  §    58 

When  the  act  of  1887  declares  that  the  tax  shall  be  assessed 
upon  the  value  of  the  estate  at  the  time  the  right  of  posses- 
sion accrues  to  the  owner,  or  that  the  tax  shall  be  assessed 
on  the  value  of  the  estate  at  the  time  of  the  payment  of  the 
tax,  it  refers  to  the  then  quantum  of  the  estate  after  deduct- 
ing the  life  estate,  and  not  to  the  value  of  the  land,  which 
may  be  a  very  different  estate  from  that  which  passed  from 
tbe  decedent.210 

Where  payment  of  the  tax  is  made  after  the  possession 
accrues,  the  remainder  is  to  be  valued  as  of  the  date  of  pos- 
session.211 And  this  is  so  whether  the  remainder  arises  by 
formal  bequest  or  by  operation  of  law.212 

Where  decedent  devised  his  estate  to  his  niece  for  life, 
with  remainder  in  fee  to  her  son,  and  the  latter  died  before 
his  mother,  leaving  as  heirs  his  sisters,  held,  upon  the  death 
of  his  mother,  that,  as  the  son  never  had  the  actual  enjoy- 
ment or  possession  of  the  estate,  it  was  not  taxable  as  pass- 
ing from  him  to  his  sisters,  but  that  the  devise  to  him  from 
the  original  decedent  was  taxable  at  the  rate  imposed  by 
statute  at  the  time  of  the  latter's  death,  and  not  at  the  rate 
imposed  by  the  law  in  existence  when  the  mother  died.213 

(4)  Where  the  life  tenant  has  power  to  dispose  of  the 
corpus  of  the  estate  during  life,  and  not  simply  the  use  of 
the  income,  and  there  is  a  bequest  to  collateral  heirs  of  any 
surplus  that  shall  or  may  remain  after  such  life  tenant's 
death,  no  tax  can  be  imposed  upon  the  residue  of  the  estate 
until  the  termination  of  the  life  estate,  as  it  is  impossible 

versing  49  Leg.  Int.  106,  30  Wkly.  Notes  Cas.  134.  11  Pa.  Co.  Ct.  R.  235, 
and  1  Pa.  Dist.  R.  159. 

210  in  re  Cooper's  Estate  (Appeal  of  Commonwealth)  127  Pa.  St. 
435,  17  Atl.  1094. 

2ii  Appeal  of  Commonwealth,  supra;    Appeal  of  Mellon,  supra. 

212  in  re  McGeary's  Estate,  14  Pa.  Law  J.  (X.  S.)  174. 

213  James'  Appeal,  2  Del.  Co.  Rep.  164.  See  In  re  Cullen's  Estate, 
2G  Wkly.  Notes  Cas.  216. 

(325) 


§    58  VESTED   AND   CONTINGENT    ESTATES.  [Cll.   6 

to  ascertain  the  value  until  that  time.214  The  same  result 
has  been  reached  under  the  New  York  statute.215 

Where,  however,  the  will  gives  the  life  tenant — a  widow — 
an  estate  upon  the  express  condition  that  she  pay  certain 
legacies  to  collateral  relatives,  the  gifts  to  the  legatees  are 
direct  and  vested,  and  subject  to  the  tax.210 

And  where217  the  testator  bequeathed  his  residuary  es- 
tate to  his  wife,  in  trust,  to  be  given  by  her,  or  as  she  might 
direct,  by  will  or  otherwise,  for  charitable  purposes,  with  the 
proviso  that  in  case  of  her  death  before  she  should  have 
used  the  estate  for  her  support  the  surplus  should  be  paid 
by  her  executors  to  specific  charities,  it  was  held  that  the 
wife  did  not  take  the  whole  residuary  estate;  that  the 
amount  necessary  for  her  support  was  capable  of  ascertain- 
ment; and  that  a  valid  trust  was  created  in  the  residue, 
which,  after  deducting  the  amount  of  such  support,  was  lia- 
ble to  taxation.  "There  can  be  no  doubt,"  said  the  court, 
"but  that,  if  it  had  been  required,  the  whole  estate  might 
have  been  taken  by  Mrs.  B.  for  her  support;  but  that  is  a 
fact  which,  under  the  authorities,  may  be  ascertained  by 
competent  evidence."  218 

(e)  Massachusetts  Statute. 

Under  this  act,219  where  property  is  bequeathed  to  a  direct 
heir  for  life  or  for  a  term  of  years,  and  the  remainder  to  a 

214  in  re  Niernan's  Estate,  131  Pa.  St.  346,  18  Atl.  900.  See  Mellon's 
Appeal,  supra. 

sis  in  re  Cager's  Will,  111  N.  Y.  343,  18  N.  E.  8G6.  See  ^ases  dis- 
cussed in  chapter  5,  §  54,  subds.  d,  b,  and  supra,  §  58,  subd.  c. 

216  in  re  Niernan's  Estate,  supra. 

217  in  re  Brewer's  Estate,  15  P.  L.  J.  (N.  S.)  433;  1G  Pa.  Law  J. 
(N.  S.)  114. 

2i8  Citing  In  re  Redroth's  Will,  27  Beav.  583;  Ensinau  v.  Directors 
of  Poor,  47  Pa.  St.  509;  Reek's  Appeal,  78  Pa.  St.  432;  Fisk  v.  Attor- 
ney General,  L.  R.  4  Eq.  521;   Witman  v.  Lex,  17  Serg.  &  R.  93. 

2i9  Laws  Mass.  1891,  c.  425,  §  2. 
(326) 


Ch.  6]  VESTED   AND   CONTINGENT    ESTATES.  §    59 

collateral  heir,  or  to  a  stranger  to  the  blood,  the  value  of 
the  prior  estate  shall  be  appraised,  and  deducted  from  the 
appraised  value  of  the  property.  The  remainder  shall  be 
subject  to  a  specified  tax,  and  the  tax  shall  be  computed 
and  deducted  from  the  principal  sum,  and  paid  over  to  the 
treasurer  of  the  commonwealth  220  "at  the  expiration  of  two 
years  from  the  date''  of  the  executor's  bond,  or  when  the 
legacy  is  paid,  if  paid  within  two  years;  and  the  amount 
of  the  loss  of  the  income  of  the  tenant  for  life  or  years 
caused  by  the  diminution  of  the  principal  of  the  fund  is  not 
to  be  made  up  to  him  out  of  the  principal  or  out  of  the  gen- 
eral funds  of  the  estate.221 

§  59.     Fraudulent  Transfers,  Trusts,  and  Gifts 
Inter  Vivos  and  Causa  Mortis. 

(a)  Statutory  Provisions. 

The  legacy  and  succession  tax  laws  of  England  222  and  the 
collateral  and  direct  inheritance  tax  laws  of  most  of  the 
states  are,  for  obvious  reasons,  framed  so  as  to  include  not 
only  property  passing  by  will  or  intestacy,  but  generally  all 
property  which  shall  be  transferred  by  deed,  grant,  sale,  or 
gift  made  or  intended  to  take  effect  in  possession  or  enjoy- 
ment at  or  after  the  death  of  the  grantor,  transferror,  or 
bargainor,  to  any  person  other  than  those  specially  exempt- 
ed. Such  is  the  provision  of  the  statute  of  New  York  of 
1S87.223 

The  statute  of  1892  224  provides  for  a  tax  when  the  trans- 
fer is  of  property  made  by  a  resident  or  by  a  nonresident, 
when  such  nonresident's  property  is  within  the  state,  by 

220  Under  Laws,  1891,  c.  425,  §  4. 

221  Miuot  v.  Winthrop  (1S94)  162  Mass.  113,  3S  N.  E.  512.     But  see 
In  re  Wharton's  Estate,  10  Wkly.  Notes  Cas.  100. 

222  16  &  17  Viet.  c.  51,  §§  7,  8. 

223  Appendix,  I.  a,  §  1. 

224  Appendix,  I.  e,  c.  3D!),  §  1,  subd.  3. 

(327) 


§   59  VESTED    AND    CONTINGENT  ESTATES.  [Ch.   6 

deed,  grant,  bargain,  sale,  or  gift,  made  in  contemplation  of 
the  death  of  the  grantor,  vendor,  or  donor,  or  intended  to 
take  effect,  in  possession  or  enjoyment,  at  or  after  such 
death.  Such  tax  shall  also  be  imposed  when  any  such  per- 
son or  corporation  becomes  beneficially  entitled,  in  posses- 
sion or  expectancy,  to  any  property  or  income  thereof  by 
any  such  transfer,  whether  made  before  or  after  the  passage 
of  the  act. 

The  statute225  further  provides  that  the  words  "estate'' 
and  "property"  shall  be  taken  to  mean  the  property  of  the 
testator,  etc.,  and  not  that  of  the  legatee  or  devisee,  etc.,  and 
shall  include  all  property  or  interest  therein,  whether  situ- 
ated within  or  without  the  state,  over  which  the  state  has 
any  jurisdiction  for  the  purposes  of  taxation.  It  also  pro- 
vides that  the  word  "transfer"  shall  be  taken  to  include  the 
passing  of  property  or  any  interest  therein  in  possession  or 
enjoyment,  present  or  future,  by  inheritance,  descent,  devise, 
bequest,  grant,  deed,  bargain,  sale,  or  gift, in  the  manner  pie- 
scribed  in  the  act.  Similar  enactments  are  contained  in  the 
laws  of  other  states.226  In  North  Carolina  it  was  also  made 
a  misdemeanor  to  make  any  fraudulent  or  intentional  dis- 
position of  property  inter  vivos  for  the  purpose  of  evading 
the  tax,227  a  provision  which  does  not  seem  to  be  contained 
in  any  of  the  other  statutes.  While  the  law  of  New  York 
upon  the  subject  of  gifts  and  conveyances  inter  vivos  and 
causa  mortis  made  or  intended  to  take  effect,  in  possession 
or  enjoyment,  at  or  after  death,  has  not  been  the  subject  of 
judicial  interpretation  by  the  highest  courts,  the  question 
has  been  considered  in  many  instances,  in  the  lower  courts; 
and  in  Pennsylvania,  from  whose  statutes  the  language  of 
the  New  York  statutes  has  been  substantially  copied,228  the 

225  Appendix,  I.  e,  §  22. 

226  gee  statutes,  Appendix. 

227  Rev.  Code,  1855,  c.  00,  §§  7,  8. 

22  8  gee  In  re  Johnson's  Estate  (Suit.)  10  N.  Y.  Supp.  0G3. 
(328) 


Ch.   6]  VESTED    AND    CONTINGENT   ESTATES.  §    59 

meaning  and  effect  of  similar  provisions  have  been  frequent- 
ly under  consideration.  The  general  rule  established  by 
these  authorities  is  that  the  tax  is  payable  on  all  property 
transferred  by  deed,  grant,  etc.,  to  collateral  or  lineal  heirs 
or  strangers  made  or  intended  to  take  effect  in  possession 
or  enjoyment  at,  on,  or  after,  the  death  of  the  grantor,  or 
transferror,  the  policy  of  the  law  being  not  to  permit  the 
owner  of  an  estate  to  evade  or  defeat  the  tax  by  any  device 
which  secures  to  him  for  life  the  income,  profit,  or  enjoy- 
ment of  an  estate  where,  after  death,  the  corpus  of  the  es- 
tate or  ony  part  thereof  shall  inure  to  the  benefit  of  persons 
who  are  not  exempted.  Hence,  it  would  seem  that  payment 
of  the  tax  can  only  be  defeated  or  avoided  by  such  a  bona 
fide  conveyance  as  parts  absolutely  with  the  possession,  ti- 
tle, and  enjoyment  in  the  grantor's  lifetime.  These  general 
principles  and  others  have  been  enunciated  and  are  sus- 
tained by  the  authorities  under  this  clause  of  the  statute.229 
So  the  acts  of  congress  required  that  a  transfer,  in  order 
to  avoid  the  tax,  should  be  made  "upon  valuable  and  ade- 
quate consideration,'' 230  which  phrase  was  construed  to 
mean  either  money  paid  or  some  present  legal  interest  or 
estate  parted  with  or  charged,  or  services  rendered  to  the 
value  of  the  property  received,231  and  under  the  English  law 

229  Reishv.  Com.,  42  Leg.  Int.  102.  affirmed  10G  Pa.  St.  521;  Seibert's. 
Appeal,  110  Pa.  St.  329,  1  Atl.  340;  Du  Bois'  Appeal.  121  Pa.  St.  308,  15 
Atl.  041;  Davenport's  Appeal,  3  Pa.  Sup.  Ct.  Dig.  230;  Trutt  v.  Crot- 
zer,  13  Ta.  St.  451;  Wright's  Appeal,  38  Pa.  St.  507;  In  re  Thomson's 
Estate,  5  Wkly.  Notes  Cas.  19;  Waugh's  Appeal,  78  Pa.  St.  430;  In 
re  Conwell's  Estate,  45  Leg.  Int.  200;  In  re  Riddle's  Estate,  Id.  394; 
Com.  v.  Kuhn,  2  Pa.  Co.  Ct.  R.  24S;  U.  S.  v.  Banks.  17  Fed.  322;  U.  S. 
v.  Hart,  4  Fed.  293.  See.  also.  In  re  Lines'  Estate  (1893)  155  Pa.  St. 
378,  20  Atl.  728.  See  In  re  Brewer's  Estate,  15  Pittsb.  Leg.  J.  433; 
10  Pittsb.  Leg.  J.  114:  Attorney  General  v.  Montiriore,  59  Law  T. 
534;  In  re  Higgins,  45  Law  T.  (N.  S.)  199;  In  re  Micklewait,  11  Exch. 
452.     See,  also.  In  re  Johnson's  Estate  (Suit.)  19  N.  Y.  Supp.  903. 

230  tj.  S.  v.  Banks,  supra. 
23i  TJ.  S.  v.  Hart,  supra. 

(329) 


§    59  VESTED    AND    CONTINGENT    ESTATES.  [Ch.  6 

a  conveyance  or  assignment  by  way  of  bona  fide  sale  did 
not  create  a  succession  upon  which  the  duty  could  be  im- 
posed.232 But,  under  the  recent  English  "Estate  Duty  Act" 
of  1894,  the  following  classes  of  property  are  liable  to  be  in- 
cluded in  an  account  for  the  purpose  of  estate  duty:  (1) 
Donatio  mortis  causa;  (2)  gifts  made  by  a  disposition  inter 
vivos  within  12  months  before  death;  (3)  gifts,  made  at  any 
time,  where  the  donor  retains  any  interest;  (1)  property 
which  the  deceased  caused  to  be  vested  in  himself  and  some 
other  person,  so  that  on  his  death  it  passes  to  the  survivor; 
(5)  property  settled  by  the  deceased  otherwise  than  by  will, 
in  which  he  retains  a  life  interest,  or  has  a  power  of  revoca- 
tion.* 

The  fact,  however,  that  the  transfer  or  conveyance  was  ac- 
tually made  by  the  owner  to  defeat  the  tax  will  not  invali- 
date the  transfer,  but  the  fund  will  be  liable  to  taxation  in 
the  hands  of  the  cestui  que  trust,233  and  it  is  not  essential 
under  the  language  of  these  acts  that  such  gifts  or  convey- 
ances should  be  intentional  or  fraudulent,  the  language  gen- 
erally being  "made  or  intended."  The  fact, therefore, that  they 
are  made  for  the  purpose  of  avoiding  the  tax,  or  that  such 
purpose  is  accomplished  by  the  transfer,  would  seem  to  be 
sufficient  in  law.234 

Thus  it  would  seem  that  the  language  of  these  statutes 
is  broad  enough  to  include,  and  is  intended  effectually  to 
cover,  even  the  most  intricate  transfers  of  property  the  ob- 
ject of  which  is  to  avoid  payment  of  the  tax,  or  is  intended 
so  to  do.      It  is  payable,  therefore,  where  the  conveyance  is 

232  Fryer  v.  Morehouse,  3  Ch.  Div.  675.  As  to  what  constitutes  a 
disposition  of  property  within  the  English  succession  act,  see  Attorney 
General  v.  Montifiore,  supra;  In  re  Micklewait,  supra;  In  re  Higgins, 
supra. 

*  Finance  Act  1894  (57  &  58  Vict.  c.  30),  §  2.  See  "Estate  Duty 
and  Succession  Duty,"  by  J.  E.  C.  Munro  (London,  1894)  p.  6. 

233  Trutt  v.  Crotzer,  13  Pa.  St.  451. 

234  in  re  Conwell's  Estate,  45  Leg.  Int.  2G6. 
(330) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    59 

such  as  to  clothe  the  grantee  with  the  mere  naked  legal  title, 
liable  to  be  defeated  at  any  time  by  the  grantor  or  in  the 
the  event  of  the  grantee's  death  before  the  grantor; 23j  and 
the  rule  was  applied  where  the  deed  was  not  delivered  until 
after  the  death  of  the  grantor; 236  and  a  deed  is  within  the 
statute  which  was  made  by  one  (who  died  intestate)  to  trus- 
tees to  convey  and  assign  the  property  after  the  grantor's 
death  in  accordance  with  his  will,  or,  in  case  of  intestacy, 
to  those  who,  had  the  deed  not  been  made,  would  have  been 
entitled  under  the  intestate  laws  to  inherit.237 

So  any  assignment  in  trust  reserving  to  the  grantor  the 
income  for  life,  and  directing  the  corpus  to  be  conveyed  to 
collateral  heirs  after  the  grantor's  death,  is  within  the  stat- 
ute; as,  for  instance,  a  transfer  of  shares  by  testatrix  in 
her  lifetime  to  legatees,  reserving  to  herself  the  dividends 
and  income  for  her  support,23 s  or  an  assignment  to  trustees 
to  pay  the  assignor  the  income  for  life,  and  after  his  death 
to  pay  certain  sums  to  persons  named  in  the  deed,  if  they 
survived  him,  with  the  right  of  revocation,  which  was  not 
exercised.239 

So  a  deed  of  trust  directing  that  the  devisees  or  trustee 
shall  hold  such  securities  and  property  in  trust  for  the  uses 
and  purposes  set  forth  in  a  will  or  deed  executed  previously, 
whereby  the  entire  estate  was  bequeathed  to  collateral  rela- 
tives, and  charity  will  not  relieve  the  estate  from  liability.240 

235  Appeal  of  Du  Bois,  121  Pa.  St.  308,  15  Atl.  041;    In  re  Lines' 
Estate  (1893)  155  Pa.  St.  378,  26  Atl.  728. 

236  Davenport's  Appeal  (Pa.  Sup.)  14  Atl.  346,  3  Pa.  Sup.  Ct.  Dig. 
236. 

237  Com.  v.  Kuhn,  2  Pa.  Co.  Ct.  R.  248. 

238  in  re  Riddle's  Estate,  45  Leg.  Int.  394.    Contra,  In  re  Hen- 
dricks (Suit.)  3  N.  Y.  Supp.  2S1 :    U.  S.  v.  Leverieh,  9  Fed.  5S6. 

239  Wright's  Appeal,  38  Pa.  St.  507;    In  re  Thomson's  Estate,  5 
W kly.  Notes  Cas.  19. 

240  Seibert's  Appeal,  110  Pa.  St.  329,  1  Atl.  326;   In  re  Lines'  Es- 
tate (1893)  155  Pa.  St  37S,  26  Atl.  728. 

(331) 


§    59  VESTED    AND    CONTINGENT    ESTATES.  [Ch.   6 

Where  decedent  executed  a  deed  purporting  to  convey 
his  entire  estate  to  a  trustee  to  pay  income  to  him,  grantor, 
for  life,  and  upon  his  death  to  distribute  the  principal  among 
strangers  and  collaterals,  the  estate  passing  under  such  deed 
is  subject  to  the  tax.241 

The  right  of  the  commonwealth  to  tax  is  not  defeated  by 
a  conveyance  or  transfer  of  title  to  the  property  during  the 
lifetime  of  the  owner,  nor  by  possession  taken  under  such 
conveyance,  if  the  enjoyment  of  the  property  conveyed  is 
not  intended  to  take  effect  until  the  death  of  the  grantor. 

Decedent,  in  his  lifetime,  executed  a  deed  of  trust  convey- 
ing to  a  trust  company  in  New  York  certain  bonds  of  a 
Missouri  corporation  and  stock  of  a  New  Jersey  corporation. 
The  trustee  was  to  collect  the  interest  and  dividends  and 
pay  them  over  to  decedent  during  his  life,  and  upon  his 
death  to  certain  beneficiaries  named.  The  trust  deed  re- 
served to  the  decedent  the  power  "to  alter,  change,  modify, 
or  revoke  all  disposition  and  direction  as  to  transfer  and 
dispositions  made  and  to  be  made  of  said  property"  after 
his  decease.  Decedent  was  a  citizen  of  Pennsylvania,  dom- 
iciled in  that  state,  both  at  the  time  the  deed  was  executed 
and  at  his  death.  He  made  no  change  in  the  beneficiaries 
mentioned  in  the  deed.  Some  of  the  beneficiaries  were  citi- 
zens of  Pennsylvania  and  some  of  another  state.  None 
were  residents  of  New  York  at  the  date  of  the  execution  of 
the  deed,  nor  at  the  death  of  decedent.  No  debts  were  ow- 
ing by  decedent  in  New  York;  no  ancillary  administration 
was  taken  there,  and  no  succession  tax  had  been  paid  in 
that  state.  Held  that  the  beneficiaries  named  in  the  deed 
were  liable  for  the  tax.242  Sterrett,  C.  J.:  "In  view  of  the 
undisputed  facts,  it  is  strange  that  any  question  should  have 
been  seriously  raised,  either  as  to  the  right  of  the  common- 

241  in  re  Maris'  Estate  (1893)  50  Leg.  Int.  458.  14  Pa.  Co.  Ct.  Rep. 
171.  and  3  Pa.  Dist.  R.  33. 

242  in  re  Lines'  Estate  (1393)  155  Pa.  St.  37S,  20  Atl.  728. 
(332) 


Ch.    6]  VESTED    AND    CONTINGENT    ESTATES.  §    59 

wealth  to  the  tax  on  the  securities,  or  the  liability  of  the 
beneficiaries  to  pay  their  respective  proportions  thereof. 
Mr.  Lines  was  not  only  the  beneficial  owner  of  the  securities 
prior  to  and  at  the  time  of  his  decease,  but  under  the  re- 
served power  of  modification,  revocation,  etc.,  he  had  abso- 
lute control  of  the  disposition  to  be  made  of  the  securities 
upon  his  decease.  At  any  time  prior  thereto  he  could  have 
modified  or  revoked  the  trust  in  favor  of  the  beneficiaries 
named  in  the  deed.  It  is  true,  the  legal  title  to  the  secu- 
rities was  in  the  trust  company,  but,  aside  from  compensa- 
tion for  its  services  as  custodian  of  the  property,  the  com- 
pany had  no  beneficial  interest  therein.  In  any  proper 
sense  of  the  term,  the  securities  were  the  personal  property 
of  Mr.  Lines.  They  were  his  to  enjoy  during  his  lifetime, 
and  his  to  dispose  of  in  any  manner  he  saw  fit,  at  any  time 
prior  to  his  decease.  He  chose  to  leave  the  trust  in  favor 
of  the  beneficiaries  unaltered  and  unrevoked,  and,  as  he  in- 
tended, it  took  effect,  in  enjoyment,  immediately  after  his 
decease.  Moreover,  the  securities  were  that  kind  of  per- 
sonal property  the  situs  of  which  follows  the  owner.'' 243 
The  manifest  purpose  of  our  collateral  inheritance  tax  is  to 
subject  property  limited  by  deed  in  the  manner  stated  in 
the  statute  to  taxation,  because  it  is  still  substantially  the 
property  of  the  grantor,  and  does  not  actually  pass,  nor  is 
it  intended  to  pass,  to  the  beneficiaries  until  his  death,  and 
hence  it  is  essentially  similar  in  that  respect  to  a  devolution 
of  property  by  testacy  or  intestacy  upon  the  death  of  the 
owner.244  i 

And  where  two  sons,  A.  and  B.,  took  an  estate  in  fee  un- 
der their  father's  will,  and  a  release  was  made  from  A.  to 
B.,  releasing  B.  from  all  claims  under  his  father's  will  on 

243  Citing  Orcutt's  Appeal,  97  Pa.  St.  179. 

ii-  Iieish  v.  Cum.,  10<;  Pa.  St.  521;  Appeal  of  Seibert,  110 
Pa.  St.  329,  1  Atl.  346;  In  re  Du  Bois'  Appeal,  121  Pa.  St.  3S6, 15  Atl. 
041. 

(333) 


§   59  VESTED    AND    CONTINGENT    ESTATES.  [Ch.   6 

condition  that  B.  should  convey  all  the  lands  to  A.'s  chil- 
dren, they  to  take  possession  at  A.'s  death,  and  to  give  him 
an  obligation  payable  after  his  death,  and  A.,  having  con- 
summated the  arrangement,  died  single,  and  without  issue, 
his  share  was  held  liable.245 

And  a  transfer  by  A.,  unmarried,  and  without  lineal  heirs, 
of  all  his  property  in  fee  to  B.,  his  brother,  the  latter  giving 
A.  a  bond  conditioned  that  A.  should  have  the  property  to 
enjoy  during  A.'s  life,  on  A.'s  death  a  few  days  after,  was 
held  within  the  statute.240 

Again,  where  testator  had  bequeathed  his  estate  to  a  re- 
ligious corporation,  and  long  prior  to  his  death  had  ad- 
vanced to  the  beneficiaries,  on  account  of  their  legacy,  large 
sums,  and  took  from  them  their  bond  conditioned  for  the 
payment  during  his  life  of  an  annuity  equal  to  interest  at  0 
per  cent,  on  the  advancement,  the  moneys  so  advanced  were 
held  to  be  a  contrivance  to  defeat  the  tax,  and  liable.247 

And  a  deed  of  gift  to  a  son,  though  made  as  an  advance- 
ment, and  as  such  chargeable  against  the  son's  share  of  the 
father's  estate,  is  a  succession  under  the  act  of  congress,248 
as  a  conveyance  made  without  valuable  and  adequate  con- 
sideration.249 

Where  A.  bequeathed  property  to  B.  and  C,  and  on  mak- 
ing her  will  wrote  to  them  that  she  intended  the  bequest  to 
be  applied  to  a  charitable  purpose,  and  relied  on  their  honor 
to  fulfill  her  wishes,  and  they  accepted  the  trust  in  her  life- 
time, held  that,  the  will  itself  not  showing  a  charitable  pur- 
pose, the  legacy  was  liable  to  duty.250 

But,  as  we  have  seen,  whenever  the  absolute  title  passes 

245  Waugh's  Appeal,  78  Pa.  St.  436. 

24G  Reish  v.  Coin.,  100  Pa.  St.  521,  affirming  42  Leg.  Int.  102. 
247  Con  well's  Estate,  45  Leg.  Int.  266. 
24  8  jime  30,  1S04,  §  132. 

24  9  u.  S.  v.  Banks,  17  Fed.  322;    U.  S.  v.  Hart,  4  Fed.  293. 
2norullen  v.  Attorney  General,  L.  II.  1  H.  L.  190. 
(334) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    59 

from  the  grantor  to  the  grantee  in  the  lifetime  of  the  former, 
the  tax  is  not  imposed,  as  where  the  grantor,  at  the  request 
of  the  grantee,  through  a  third  person,  delivers  the  deed  to 
the  latter  for  the  grantee,  even  though  it  never  comes  to  the 
latter's  possession  until  the  grantor's  death.  And  it  would 
seem  to  make  no  difference  that  the  latter  devises  the  same 
property  by  will  to  the  grantee  as  he  takes  under  the  deed.201 

And  wmere  defendant's  mother  took  a  vested  interest  in 
a  trust  fund  created  by  defendant's  brother,  the  enjoyment 
of  which  in  possession  only  wras  postponed  until  the  death 
of  defendant's  said  brother  with  a  power  of  disposition  by 
will,  and  prior  to  the  creation  of  the  trust  the  mother  had 
made  her  will  in  favor  of  the  defendant  and  her  brother,  and 
the  latter  died  before  the  mother,  held  that,  as  the  trust 
deed  gave  a  vested  remainder  to  the  mother,  the  defendant 
took  under  the  latter's  will,  and  not  from  the  brother,  and 
that  the  fund  was  not  liable  to  the  tax.252  Where,  by  the 
terms  of  the  deed,  a  part  of  the  consideration  of  a  voluntary 
conveyance  of  land  taking  effect  presently,  was  the  mainte- 
nance by  the  donee  of  the  donor  for  life,  and  the  same  is  not 
charged  on  the  real  estate,  the  land  is  not  chargeable  with 
the  tax.253  Where  there  has  been  in  good  faith  a  parol  gift 
of  land,  and  continued  possession  and  enjoyment  by  the 
donees  until  the  donor's  death,  the  state  cannot,  in  proceed- 
ings to  enforce  the  tax,  take  advantage  of  the  statute  of 
frauds.254 

A  promissory  note  of  uncertain  value,  transferred  by  de- 
cedent in  his  lifetime  to  another,  who  took  the  risk  of  col- 

251  Stinger  v.   Com.,  26  Pa.   St.  422.    See  Du   Bois'   Appeal,   121, 
Pa.  St.  3GS,  15  Atl.  041. 

252  Haekett  v.  Com.,  102  Pa.  St.  500. 

253  in  re  McCormick's  Estate  (1S94)  3  Pa.  Dist.  R.  S3S,  23  Pittsb. 
Leg.  J.  (N.  S.)  91. 

254  In  re  Huey's  Estate  (1894)  24  Pittsb.  Leg.  J.  (N.  S.)  470. 

(335) 


§    59  VESTED    AND    CONTINGENT    ESTATES.  [Ch.   G 

lection  in  consideration  of  an  annual  sum  to  be  paid  to  de- 
cedent as  long  as  he  should  live,  is  not  within  the  statute.255 

In  England,  under  the  legacy  act,  property  passing  under 
trust  deed,  even  with  power  of  revocation,  was  not  liable,256 
and  so  as  to  gifts  inter  vivos,257  real  estate  of  decedent  sit- 
uate in  another  state,  held  in  trust  for  his  nieces,  is  not 
within  the  statute.258  But  the  law  in  these  respects  is  now 
modified  by  statute,  and  real  and  personal  property  passing 
by  deed  of  trust  or  by  gifts  inter  vivos  or  donatio  mortis 
causa  to  take  effect  at  death  are  liable  to  succession  duty.25ft 

The  provisions  of  the  New  York  statutes  with  reference 
to  the  taxation  of  interests  passing  by  deed,  grant,  bargain, 
sale,  or  gift,  made  in  contemplation  of  the  death  of  the 
grantor,  or  intended  to  take  effect  in  possession  or  enjoy- 
ment at  or  after  such  death,  have  already  been  referred  to 
at  length.260 

Where  the  testatrix,  by  will,  bequeathed  all  her  property 
to  her  executor  individually,  but  agreed  with  him,  at  the 
time  of  the  making  of  the  will,  that  the  bequest  should  be  in 
trust  for  her  brother,  such  trust  is  within  the  exemption  of 
the  statute.261 

A  bequest  absolute  in  form  to  executors,  pursuant  to  an 
understanding  between  them  and  testator,  by  which  a  valid 
parol  trust  was  created  in  favor  of  certain  charitable  cor- 

255  in  re  Garman's  Estate,  3  Pa.  Co.  Ct.  R.  550.  But  see  In  re 
Biddle's  Estate,  45  Leg.  Int.  394. 

2  56  Tompson  v.  Browne,  3  Mylne  &  K.  32. 

2  5T  Brown  v.  Advocate  General,  1  Macq.  H.  L.  Cas.  79. 

2  5$  in  re  Dewey's  Estate,  N.  Y.  Law  J.  Oct.  21,  18S9. 

250  Layton,  Leg.  Duty  (9th  Ed.;  1892)  pp.  20-110  et  seq.;  16  &  17 
Vict.  c.  51,  §§  1,  2,  8. 

260  Supra,  p.  327.  For  the  taxation  of  such  interest  under  the  re- 
troactive clause  act  of  1892,  see  supra,  section  58,  subds.  c,  f. 

2oi  in  re  Farley's  Estate,   15  N.  Y.  St  Rep.  727.    Contra,  Cullen 
v.  Attorney  General,  L.  R.  1  II.  L.  190. 
(33G) 


Ch.    6]  VESTED    AKD    CONTINGENT    ESTATES.  §   50 

porations  which  were  exempt  from  taxation,  is  not  subject 
to  the  legacy  tax.202 

And  where  the  property  passed  to  trustees  under  a  trust 
deed,  and  the  net  income  thereof  to  the  grantor  for  life, 
the  trustees  on  her  death  to  convert  the  property  into  money 
and  distribute  the  same  among  collaterals,  and  the  deed 
was  irrevocable,  held,  that  the  corpus  of  the  estate,  having 
passed  at  the  date  of  the  deed,  and  in  one  instance  before 
the  act  went  into  effect,  was  not  within  the  law.263  This  is 
not  thought  to  be  a  well-considered  case,  and  its  authority 
is  doubtful  in  view  of  subsequent  decisions  by  the  same  court 
and  the  language  of  the  statute  of  1892. 

Decedent,  by  will  made  in  1882,  and  by  codicil  executed 
in  1SS9,  gave  his  property  in  certain  proportions  to  his  wife 
and  issue.  Afterwards  he  executed  a  deed  of  trust  by 
which  he  transferred  the  bulk  of  his  property  to  a  trustee  in 
trust  to  invest  the  same  and  apply  the  income  therefrom  to 
the  support  and  maintenance  of  the  grantor  and  his  family, 
and,  upon  the  death  of  the  grantor,  to  distribute  and  pay 
over  the  property  and  its  proceeds  to  and  among  the  heirs 
or  representatives  in  accordance  with  the  provisions  of  his 
will.  The  testator  died  in  1891.  Held,  that  the  property 
passed  under  the  will,  and  not  under  the  deed  executed  sub- 
sequently, and  was  liable  to  taxation.264 

Ransom,  S.,  said:  "It  will  be  seen  that  the  Pennsylvania 
courts,  in  the  cases  cited  above,  while  recognizing  the  fiction 
of  law  that  the  deed  granting  the  power  and  the  will  exe- 

26  2  in  re  Murphy's  Estate  (1893)  4  Misc.  Rep.  230,  25  N.  Y.  Supp. 
107. 

2  63  in  re  Hendricks'  Estate  (Suit.)  3  N.  Y.  Supp.  281;  U.  S.  v. 
Leverich,  9  Fed.  586.  But  see  In  re  Riddle's  Estate,  45  Leg.  Int  394; 
In  re  Lovelace,  4  De  Gex  &  J.  340;  In  re  Johnson's  Estate  (Sun*.) 
19  N.  Y.  Supp.  963;   In  re  Lines'  Estate,  155  Pa.  St.  378,  26  Atl.  728. 

264  in  re  Johnson's  Estate  (Suit.)  19  N.  Y.  Supp.  963,  citing  Genet 
v.  Hunt.  113  N.  Y.  158,  21  N.  E.  91;  Retell  v.  Com.,  106  Pa.  St.  521; 
Seibert's  Appeal,  110  Pa.  St.  329,  1  Atl.  346. 

LAW  inher. — 22  (337) 


§    59  VESTED    AND    CONTINGENT    ESTATES.  [Ch.    6 

cuted  thereunder,  are  to  be  construed  as  one  instrument, 
bold  tbat  the  instrument  is  to  be  regarded  as  a  deed  to  take 
effect  in  enjoyment  upon  the  decedent's  death.  The  statute 
of  this  state  265  corresponds  in  its  language  to  the  Pennsyl- 
vania act,  and  should  receive  a  similar  construction.  The 
law  when  the  deed  goes  into  effect,  viz.  the  death  of  the  tes- 
tator or  donee  of  the  power,  should  govern,266  not  the  law  at 
the  time  the  deed  was  executed." 

Under  the  act  of  1892 287  transfers  by  deed  are  taxable  only 
(1)  when  made  in  contemplation  of  the  death  of  the  trans- 
ferror, or  (2)  are  intended  to  take  effect  in  enjoyment  after 
the  death  of  the  transferror.  Where  the  transfer  was  in 
the  nature  of  a  gift  inter  vivos,  its  taxation  is  not  contem- 
plated by  the  act.268 

But  a  gift  causa  mortis  by  decedent  to  his  debtor  of  a 
promissory  note  is,  it  seems,  subject  to  the  inheritance 
tax.269 

So,  where  decedent  made  a  gift  causa  mortis  in  writing, 
of  a  box  and  its  contents,  consisting  of  savings  bank  books, 
stating  to  the  donee  "that  you  will  take  charge  of  all  my 
personal  effects  of  every  kind,  and  to  have  and  to  hold  the 
same  unto  yourself,  your  heirs  and  assigns  forever,"  and 
thereupon  delivered  to  the  donee  his  papers  and  books,  the 
property  was  held  liable  to  the  inheritance  tax.  The  court 
said:  "This  statute270  evinces  the  intention  of  the  legisla- 
ture to  subject  to  a  tax  all  property  which  should  be  trans- 
ferred by  a  gift  to  take  effect  after  the  death  of  the  grantor 

2C5  Laws  1891,  c.  215,  amending  Act  1S87. 

see  in  re  Roosevelt's  Estate,  143  N.  Y.  120,  38  N.  E.  2S1. 

267  Appendix,  I.,  Laws  1892,  c.  399. 

268  in  re  David,  13  N.  Y.  Law  J.  479. 

2  69  in  re  Crosby  (1891;  Suit.)  20  N.  Y.  Supp.  62;  In  re  Edwards' 
Estate  (N.  Y.  App.)  41  N.  E.  89,  affirming  32  N.  Y.  Supp.  901  (Sup.). 
As  to  the  taxation  of  donatio  mortis  causa  under  the  English  stat- 
utes, see  Layton's  Legacy  Duty  (9th  Ed.)  p.  26. 

270  Appendix,  Act  18S7,  c.  713,  §  1. 
(338) 


Cll.    6]  VESTED    AND    CONTINGENT    ESTATES.  §    60 

or  bargainor.  The  title  to  the  property  passed  to  the  appel- 
lant upon  its  delivery  to  him  by  the  donor,  but  the  gift  was 
subject  to  revocation  at  all  times  during  the  lifetime  of  the 
giver,  and  in  that  sense  it  took  effect  in  enjoyment  after  the 
death  of  the  grantor.  He  could  not  have  maintained  an 
action  for  the  recovery  of  the  money  represented  by  the 
bank  books  during  the  lifetime  of  Edwards,  and  therefore 
he  could  not  enter  upon  the  full  enjoyment  of  the  gift  until 
after  his  death.  The  gift,  therefore,  seems  to  fall  within  the 
spirit  and  intention  of  the  statute,  and  the  tax  was,  there- 
fore, properly  imposed."  271 

§  60.     Powers  of  Appointment. 

Property  devised  to  a  daughter  for  life,  with  power  of  ap- 
pointment by  will  in  the  life  tenant,  which  property  the 
daughter  by  will  devised  to  her  brothers  and  sisters  and 
their  children  being  lineal  descendants  of  her  father,  is  not 
liable  to  the  tax; 272  but  where  the  power  is  improperly  exer- 
cised, and  the  estate  descends  as  the  estate  of  the  donee  to 
collaterals,  the  tax  is  payable  on  the  descent  from  the  donee 
to  the  appointee,  notwithstanding  the  tax  was  paid  in 
another  state  on  the  descent  from  the  donor  to  the  donee.273 

In  Re  Stewart,274  a  trustee  was  given,  under  decedent's 
will,  power  of  appointment  among  such  legatees  named  in 
the  will  as  he  should  select.278     He  executed  the  power  four 

271  Dykrnan,  J.,  in  Re  Edwards'  Estate  (Sup.)  32  N.  Y.  Supp.  901, 
affirmed,  without  opinion,  in  court  of  appeals,  May  3,  1S95  (41  N. 
E.  89). 

272  Com.  v.  Williams,  13  Pa.  St  29;  Com.  v.  Sharpless,  2  Chest. 
Co.  Rep.  (Pa.)  246. 

273  Com.  v.  Sharpless,  supra;  Com.  v.  Schumacher,  9  Lane.  Co.  Bar 
(Pa.)  199;    Hackett  v.  Com.,  102  Pa.  St.  505. 

274  io  N.  Y.  Supp.  15  (Suit.),  affirmed  in  131  N.  Y.  274,  30  N.  E. 
184. 

87  5  As  to  discretion  of  trustees  under  powers  under  the  English 

(339) 


§   60  VESTED    AND    CONTINGENT    ESTATES.  [Ch.  6 

years  after  decedent's  death.  Among  certain  of  the  ap- 
pointees were  collateral  heirs,  and  it  was  held  that,  al- 
though the  property  passing  under  the  power  could  not  be 
appraised  or  taxed  at  decedent's  death,  it  became  apprais- 
able  and  taxable  at  the  time  the  power  was  executed.  Ran- 
som, S.,  said:  "It  is  a  well-settled  principle  of  the  law 
that  where  parties  take  under  a  power  of  appointment  they 
take  under  the  instrument  creating  the  power,  so  that  the 
parties  named  by  H.  under  the  power  given  him  must  be 
regarded  as  the  persons  selected  by  Mrs.  Stewart.  It  is 
true  that  their  interest  did  not  accrue  until  the  date  when 
the  power  was  executed,  *  *  *  at  which  date  also  the 
tax  upon  their  interests  accrued."  277  These  views  were 
affirmed  in  the  court  of  appeals.278  Where  decedent  died 
in  1859,  giving  his  daughter  a  life  interest  in  a  trust  fund, 
with  power  of  appointment  by  will,  and  the  daughter  died 
in  1893,  appointing  the  fund,  it  was  held  liable  to  taxation, 
under  the  retroactive  clause  of  the  act  of  1892,279  as  against 
the  beneficiaries  taking  under  the  power.280  The  surrogate 
said:  "An  estate  or  interest  derived  from  the  execution  of 
a  power  of   appointment   is  regarded  as  acquired   under 

statutes,  see  Attorney  General  v.  Simcox,  1  Excb.  749;  Attorney 
General  v.  Holford,  1  Price,  426;  Attorney  General  v.  Mangles,  5 
Mees.  &  W.  120;  Advocate  General  v.  Ramsay,  2  Crorup.,  M.  &  R. 
224.  For  cases  generally  upon  the  subject  of  powers  under  these 
statutes,  see  Drake  v.  Attorney  General,  10  Clark  &  F.  257;  Attor- 
ney General  v.  Brackenbury,  1  Hurl.  &  C.  7S2;  Piatt  v.  Routh,  6 
Mees.  &  W.  756.  And  see  36  Geo.  III.  c.  52,  §  18;  Attorney  General  v. 
Munby,  3  Hull.  &  N.  826;  Attorney  General  v.  Chapman,  [1S91]  2  B. 
D.  532. 
27 t  See  chapter  5,  §  54,  subds.  d,  c. 

278  131  n.  Y.  274,  30  N.  E.  184,  citing  4  Kent,  Coram.  338;   Jack- 
son v.  Davenport,  20  Johns.  537;  2  Sugd.  Powers,  p.  22. 

279  chapter  399,  §  1,  subd.  3.    See  this  clause  and  cases  arising 
thereunder  considered  supra,  section  58,  subds.  c,  f. 

2so  in  re  Brooks'  Estate,  per  Fitzgerald,  S.,  32  N.  Y.  Supp.  176. 
See,  also,  In  re  Tobias,  supra. 
(340) 


Ch.  6]  VESTED    AND   CONTINGENT    ESTATES.  §    60 

and  by  virtue  of  the  instrument  raising  the  power.  Never- 
theless, such  estate  or  interest  does  not  vest  nor  is  it  created 
until  the  time  of  appointment,  although  the  source  of  its 
origin  is  found  in  the  instrument  conferring  the  power.281 
The  circumstance  that  the  appointee  takes  under  such 
instrument  as  the  source  of  his  title,  and  not  any  notion 
that  the  estate  or  interest  taken  becomes  vested  or  is  cre- 
ated, either  actually  or  constructively,  at  the  time  such 
instrument  goes  into  effect,  is  the  reason  for  regarding  the 
estate  or  interest  created  by  the  power  as  passing  by  a 
transfer  made  by  such  instrument  within  the  meaning  of 
the  acts  for  the  taxation  of  decedents'  estates.282  An  es- 
tate or  interest  originating  in  the  manner  described  is,  with 
respect  to  the  time  of  its  creation  and  vesting  the  same, 
in  effect  as  if  it  were  an  estate  acquired  by  direct  and  ex- 
clusive operation  of  the  instrument  creating  it  by  a  person 
who  had  come  into  being  subsequently  to  the  time  when  the 
instrument  took  effect.  The  devise  of  a  remainder  depend- 
ent upon  a  life  estate  and  vesting  in  such  person  upon  his 
birth,  is  an  instance  of  the  disposition  last  referred  to.  The 
estate  or  interest  so  acquired  does  not  vest  nor  come  into 
existence  until,  in  one  case,  the  power  has  been  executed, 
and,  in  the  other,  until  the  beneficiary  has  come  into  being. 
A  different  result  the  doctrine  of  relation  is  incapable  of 
producing,  and  it  is  properly  confined  in  its  application  in 
such  cases  and  for  the  purposes  of  the  acts  mentioned  re- 
ferring the  estate  or  interest  to  the  source,  whether  imme- 
diate or  remote,  from  which  the  title  is  derived.  In  the 
present  case  the  estate  or  interest  which  the  beneficiary  has 
taken  under  the  power,  as  well  as  the  right  of  possession 
thereof,  came  into  existence  after  the  passage  of  the  act,283 

2  8i  Citing  Jackson  v.  Davenport,  20  Johns.  551,  552;  In  re  Stewart, 
131  N.  Y.  274,  30  N.  E.  1S4. 

282  in  re  Stewart,  supra. 

283  Laws  1892,  c.  399,  supra. 

(341) 


§    GO  VESTED   AND   CONTINGENT    ESTATES.  [Ch.   6 

under  consideration.  Similarly  the  beneficiary  as  beneficiary 
had  no  previous  existence.  Such  being  the  case,  there  is 
no  doubt  that  the  beneficiary  is,  with  respect  to  the  estate, 
which  he  has  taken,  a  person  who  has  become  beneficially 
entitled  in  possession  to  property  after  the  passage  of  the 
act  of  1892,  by  a  transfer  previously  made."  2Si  Where  the 
estate  of  a  resident  decedent  included  real  estate  and  chat- 
tels in  another  state,  and  where,  under  a  power  of  sale 
given  by  his  will  to  his  executors  for  the  purpose  of  paying 
legacies  and  making  distribution,  said  property  was  sold 
and  converted  into  money,  held  that  the  real  property 
without  the  state  was  not  subject  to  appraisal  and  tax  un- 
der the  statute,  but  that  the  personalty  was.285 

Both  the  English  legacy  and  succession  duty  acts  impose 
taxes  upon  property  passing  under  powers  of  appointment.286 
Under  the  succession  duty  act,  the  appointee  under  a  gen- 
eral power  of  appointment  which  has  taken  effect  on  a  death 
happening  since  the  commencement  of  the  act  takes  a 
succession  from  the  donee  of  the  power,  and  is  liable  to 
duty.287 

It  has  been  held,  where  property  passed  under  an  im- 
perative special  power,  to  the  life  tenant  in  trust,  and  the 
appointees  being  specified  in  the  decedent's  will,  that  a 
formal  execution  of  the  power  by  the  life  tenant  in  her 
lifetime  was  not  necessary  to  vest  in  the  appointees  title 
to  the  property,  and  that  notwithstanding  one  of  the  ap- 
pointees, who  was  not  taxable,  might,  if  he  should  survive, 
inherit  the  whole  property,  the  shares  of  the  nonexempt 

2«*  See,  also,  In  re  Johnson's  Estate  (June  16,  1892;  Suit.)  19  N. 
Y.  Supp.  963. 

285  in  re  Swift  (1893)  137  N.  Y.  77,  32  N.  E.  1096. 

280  36  Geo.  III.  c.  52,  §  18;  16  &  17  Vict.  c.  51,  §  4.  See  Charlton  v. 
Attorney  General,  4  App.  Cas.  427;  Attorney  General  v.  Bracken- 
bury,  1  Hurl.  &  C.  782;    Piatt  v.  liouth,  6  Mees.  &  W.  756. 

2  87  Attorney  General  v.  Upton,  L.  R.  1  Exch.  224. 
(342) 


Ch.   G]  VESTED    AND    CONTINGENT    !>I  A  §    01 

remainder-men  were  immediately  taxable.288  But  under 
recent  adjudications,  however,  no  such  tax  can  be  so  im- 
posed until  the  estate  vests  in  possession  or  enjoyment.285 

§  61.     Legacies  for  Debts  and  Other  Obligations.2"" 

Decedents  at  times  expressly  provide  for  the  payment  of 
their  debts  by  will,  bequeathing  to  the  creditor  a  specific 
amount  in  payment  of  his  claim.  In  numerous  instances 
legacies  are  also  bequeathed  "free"  or  "clear  of"  the  tax,  and 
in  such  cases  the  question  frequently  arises  as  to  whether 
the  decedent's  estate  is  to  pay  the  tax  or  the  legatee  out  of 
the  legacy.291 

While  a  legacy  is  defined  to  be  any  estate  or  interest  in 
property,  either  real,  personal,  or  mixed  passing  by  will,292 
the  general  rule  is  that  a  legacy  in  payment  of  a  legal  debt, 

288  in  re  Hyde,  7  N.  Y.  Law  J.  249,  citing,  on  question  of  pow- 
er. In  re  Livingston,  34  N.  Y.  557;  Watkins  v.  Reynolds,  123  N.  Y. 
211,  25  N.  E.  322;  Townshend  v.  Fromnier,  125  N.  Y.  446,  2G  N.  E. 
805. 

2  89  See  In  re  Curtis,  142  N.  Y.  219,  36  N.  E.  887;  In  re  Roosevelt's 
Estate,  143  N.  Y.  120,  38  N.  E.  2S1;  In  re  Hoffman's  Estate,  143  N. 
Y.  327,  38  N.  E.  311. 

290  Legacies  of  $500  to  collaterals,  and  legacies  to  lineal  heirs  ex- 
ceeding $10,000,  under  the  New  York  act  of  1S92,  are  taxable  where 
the  aggregate  estate  of  the  testator  exceeds  those  amounts.  See 
In  re  Hoffman's  Estate,  143  N.  Y.  327,  38  N.  E.  311.  See,  also,  chap- 
ter 3,  §  41;   chapter  5,  §  53. 

291  As  to  liability  of  executor  and  legatee  inter  se,  see  chapter  7, 
§  64.  As  to  the  taxation  of  legacies  given  to  executors  in  lieu  of 
commissions,  see  chapter  7,  §  63.  See,  also,  In  re  Sidell's  Estate,  8 
N.  Y.  Law  J.  1404;  In  re  Meyers,  5  N.  Y.  Law  J.  532;  In  re  Gould. 
13  N.  Y.  Law  J.  7S1. 

292  com.  v.  Smith,  5  Pa.  St.  142;  In  re  King's  Estate,  11  Phila.  27. 
See  "legacy"  defined,  36  Geo.  III.  c.  52,  §  7;  8  &  9  Vict.  c.  76,  §  4; 
16  &  17  Vict.  c.  57,  §  1;  In  re  Miller,  7  N.  Y.  Law  J.  308.  The 
legacy  of  a  slave  was  held  taxable  under  the  early  Maryland  stat- 
ute.   State  v.  Dorsey,  6  Gill,  388. 

(313) 


§    61  VESTED    AND    CONTINGENT    ESTATES.  [Cll.  G 

or  for  services  rendered  the  decedent  upon  request,  is  not  a 
gift,  legacy,  or  property  within  these  laws,  and  hence  is  not 
liable  to  taxation.203 

Where  a  bequest  is  made  to  a  creditor  on  condition  that 
he  accepts  it  in  full  of  all  unsettled  accounts  and  claims' 
against  testator,  it  is  not  subject  to  the  tax,  where  it  appears 
that  such  accounts  exceed  the  sum  bequeathed.294 

The  test  as  to  whether  a  legacy  is  in  payment  of  a  debt 
or  is  a  gratuity  liable  to  taxation  was  recentty  considered  by 
Kennedy,  S.,295  in  a  case  where  the  decedent  left  a  legacy  to 
a  physician  "in  view  and  in  consideration  of  his  unremitting 
care  and  attention  to  me  during  my  years  of  sickness,  with- 
out asking  any  reward  for  services  rendered."  The  court 
held  that  this  was  a  voluntary  gift,  and  taxable.  Kennedy, 
S.  "The  estate  which  passes  to  an  heir  or  legatee  and  upon 
which  a  tax  is  to  be  assessed,  is  the  amount  which  remains 
to  be  distributed  after  all  the  debts  and  funeral  expenses  are 
paid.  Hence,  the  existence  of  a  claim  which  the  testator 
might  be  honorably,  but  not  legally,  bound  to  pay,  is  insuf- 
ficient. It  must  be  one  to  which  there  is  no  legal  defense, 
and  which  the  creditor  can  enforce  by  legal  proceedings. 
If  this  were  not  the  legal  rule,  a  testator  might,  either  de- 
signedly or  otherwise,  defeat  the  object  of  the  statute,  and 
render  it  practically  useless  by  simply  reciting  in  his  will 
that  the  legacy  is  in  consideration  of  care,  attention,  kind- 
ness, favors  received  from  or  services  performed  by,  the  leg- 
atee at  some  period  of  the  testator's  life.  The  reasons 
which  a  testator  may  give  for  making  a  legacy,  while  appro- 
priate in  explanation  of  his  motives,  cannot  be  made  use  of, 

293  in  re  Quinn's  Estate,  8  Wkly.  Notes  Cas.  312;  In  re  Rogers' 
Estate,  2  Con.  Sur.  198,  10  N.  Y.  Supp.  22;  In  re  Reilly's  Estate,  3  N. 
Y.  Law  J.  796. 

2»4  in  re  Underbill's  Estate  (Suit.)  20  N.  Y.  Supp.  134. 

295  in  re  Doty's  Estate,  7  Misc.  Rep.  193,  27  N.  Y.  Supp.  653.    See 
In  re  Wright,  6  N.  Y.  Law  J.  317. 
(341) 


•Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    61 

either  by  himself  or  his  legatee,  to  shield  a  legacy  from  taxa- 
tion; because  a  legacy  implies  a  bounty,  and  not  the  payment 
of  a  debt.  Hence,  the  court,  in  ascertaining  whether  a  legacy 
is  taxable  or  not,  has  the  right  to  determine,  not  only  from  the 
provisions  of  the  will,  but  by  extrinsic  facts,  if  necessary, 
whether  it  is  a  voluntary  gift  or  in  payment  of  a  legally  en- 
forceable debt.  And  if  it  appears  that  the  legacy  was  a 
pure  gratuity,  the  legatee,  if  he  accepts  it,  must  take  it 
subject  to  the  conditions  upon  which  it  was  given,  and  sub- 
ject also  to  the  conditions  which  the  law  has  impressed  upon 
it.  The  payment  of  a  tax  cannot  be  avoided  by  the  mere 
phraseology  of  the  will.  Declarations  of  the  testator  can- 
not rise  above  the  law  and  abrogate  its  provisions.  The 
tax  cannot  be  eluded  b}'  the  use  of  words  not  necessary  to 
make  the  gift  effective.  *  *  *  If  a  testator  makes  a  be- 
quest or  devise  of  property  to  his  executors  or  trustees  in 
lieu  of  their  legal  commissions  and  allowances,  the  excess 
beyond  a  reasonable  compensation  for  their  services  is  liable 
to  a  tax;  and  we  know  of  no  good  reason  why  a  legacy  in 
payment  for  services,  care,  attention  rendered  a  testator, 
should  not  be  placed  upon  the  same  basis.  This  course  pro- 
tects the  state  from  fraud,  and  prevents  legatees  from  avoid- 
ing the  tax  which  the  statute  has  demanded.  *  *  *  For 
acts  of  kindness  shown,  for  favors  received,  for  some  act 
done  at  an  opportune  moment,  *  *  *  a  testator  may,  at 
the  time  of  making  his  will,  feel  exceeding  grateful,  and 
think  it  his  duty  to  express  his  appreciation  and  remem- 
brance of  them  by  legacies  to  those  who  have  rendered 
them;  but,  unless  some  legal  and  enforceable  claim  exist 
against  the  testator  by  reason  of  them,  a  legacy  thus  given 
in  grateful  recognition  of  the  kindly  act  of  friends  and  rel- 
atives should  be  considered  a  bounty,  and  not  the  payment 
of  a  debt,  unless  the  debt  is  in  some  manner  established  to 
the  satisfaction  of  the  court,  and,  for  this  reason,  should 
not  be  exempt  from  taxation." 

(345) 


§    61  VESTED    AND    CONTINGENT    ESTATES.  [Ch.    0 

The  state  has  the  right  to  inquire  into  the  services  claimed 
to  have  been  rendered,  their  character  and  value,  and  to  the 
extent  only  that  the  bequest  was  not  a  gratuity  it  would  be 
exempt.296 

Sums  loaned  by  a  testator  to  his  sons,  and  which  his  will 
provided  should  be  included  in  his  estate  and  divided  equal- 
ly among  his  children,  the  loans  to  be  deducted  from  the 
share  of  the  children  to  whom  made,  are  not  advancements, 
but  legacies  subject  to  taxation.297 

Where  the  bequest  of  the  residue  of  testator's  estate  in- 
cludes a  note  made  by  the  legatee,  the  amount  of  such  note 
is  subject  to  the  legacy  tax.298 

Testatrix  was  indebted  to  one  B.  upon  a  note.  B.  be- 
queathed to  testatrix  the  amount  of  the  debt,  and  the  latter, 
reciting  the  indebtedness,  bequeathed  a  portion  of  the  same 
to  relatives  of  B.,  who  claimed  it  was  not  taxable,  as  being 
a  legacy  in  payment  of  a  debt.  Held  taxable;  that,  under 
the  terms  of  B.'s  will,  all  property  was  bequeathed  to  testa- 
trix, and  thereby  all  obligation  upon  the  note  ceased. 
"There  was,  in  no  sense,  any  debt,  legal  or  moral,  to  the  ben- 
eficiaries under  her  own  will.  They  take  the  legacy  by  vir- 
tue of  her  bounty,  and  her  recital  therein  of  the  note,  and  the 
deduction  from  the  face  thereof,  is  simply  to  measure  the 
amount  of  the  gift  to  the  legatees,  and  to  indicate  the  reason 
therefor."  299 

Where  testatrix  bequeathed  all  her  property  to  one  H., 
"in  consideration  of  a  home  for  me  at  his  house  during  my 
life,"  and  the  will  was  executed  pursuant  to  an  agreement 
that  it  should  be  so  done,  and  that  H.  should  provide  for 
her  during  life,  which  was  done,  held,  that  the  legacy  was 

290  in  re  Richardson,  8  N.  Y.  Law  J.  1392. 
207  in  re  Bartlett  (1S93)  4  Misc.  Rep.  3S0,  25  N.  Y.  Supp.  990. 
298  in  re  Tuigg's  Estate  (July  10,  1891)  2  Con.  Sur.  633,  15  N.  Y. 
Supp.  548. 
290  in  re  Wright,  6  N.  Y.  Law  J.  317. 
(346) 


Ch.   6]  VESTED    AND    CONTINGENT    ESTATES.  §    61 

not  a  gift,  but  the  payment  of  a  valid  claim,  and  was  there- 
fore not  subject  to  the  legacy  tax.300 

So,  a  debt  released  by  will,  where  the  debt  was  previously 
outlawed  by  the  statute  of  limitations,  passes  nothing,  and 
the  amount  of  such  debt  cannot  be  assessed  for  the  tax.301 

In  England,  however,  under  the  legacy  act,  the  rule  is 
different,  and  the  forgiveness  of  a  bond  debt  by  will  was 
held  to  be  a  legacy  liable  to  the  duty; 302  and  in  one  case, 
where  the  testatrix  generously  provided  in  her  will  for  the 
payment  of  all  her  husband's  debts,  the  creditors  were, 
nevertheless,  compelled  to  pay  the  duty.303 

Where,  however,  the  legacy  is  a  pure  gratuity  for  services 
rendered  testator  without  expectation  of  reward  or  compen- 
sation, it  is  taxable,304  and  where  a  testatrix,  reciting  that  A. 
was  indebted  to  her  on  bond,  declared  that  in  case  he  made  no 
demand  against  her  estate  for  boarding  her  she  bequeathed 
him  the  debt  due  by  him  and  directed  her  executors  to  can- 
cel the  bond,  the  legacy  is  liable.305 

8oo  in  re  Hulse's  Estate,  (Suit.)  15  N.  Y.  Supp.  770. 

3oi  Stinger  v.  Com.,  26  Pa.  St.  429.  See  Williamson  v.  Naylar, 
3  Younge  &  C.  208. 

302  Attorney  General  v.  Holbrook,  3  Younge  &  J.  114. 

803  Foster  v.  Ley,  2  Scott,  43S;  Turner  v.  Martin,  7  De  Gex,  M. 
&  G.  429. 

so*  in  re  Gibbons'  Estate,  16  Phila.  218. 

80  5  Tyson's  Appeal,  10  Pa.  St.  220.    See  In  re  Tuigg's  Estate,  supra. 

(347) 


§    62  SURROGATES,  DISTRICT    ATTORNEYS,  ETC.  [Ch.   7 


CHAPTER  VII. 

SURROGATES,     DISTRICT     ATTORNEYS,     COUNTY     TREAS- 
URERS, REGISTERS,  EXECUTORS,  AND  OTHER 
OFFICERS. 

$  62.    Surrogates,  District  Attorneys,  County  Treasurers,  Registers, 
and  Appraisers. 

63.  Executors,  Administrators,  and  Trustees. 

64.  Liability  of  Executors,  Administrators,  Trustees,  Heirs,  and 

Legatees  inter  Se. 

65.  Compromises  between  Public  Officers,  Executors,  and  Lega- 

tees. 

§  62.     Surrogates,   District   Attorneys,  County- 
Treasurers,  Registers,  and  Appraisers. 

Under  collateral  inheritance,  legacy,  and  succession  tax 
laws  various  powers,  duties,  and  liabilities  in  connection 
with  the  assessment,  collection,  and  .payment  of  the  tax  are 
imposed  upon  surrogate,  probate,  and  orphans'  courts,  dis- 
trict attorneys,  registers,  county  treasurers,  executors,  ad- 
ministrators, trustees,  appraisers,  and  other  persons  and  of- 
ficials, which  it  is  proposed  to  consider  in  the  present  chap- 
ter. As  these  duties  are  principally  statutory,  some  of  the 
provisions  of  law  relating  thereto  may  be  consulted  in  the 
Appendix. 

Questions  concerning  the  appraisement  or  valuation  of  es- 
tates subject  to  the  tax  have  been  treated  separately,1  and 
proceedings  regarding  the  remedy  and  practice  to  be  pur- 
sued under  these  acts  have  been  reserved  for  the  last  chap- 
ter.2 

Surrogates'  courts  in  New  York  are  constitutionally  em- 
powered to  hear  and  determine  all  questions  relating  to  the 

i  Chapter  5.  2  Chapter  8. 

(348) 


Ch.   7]  SURROGATES,   DISTRICT    ATTORNEYS,   ETC.  §    62 

estates  of  decedents  arising  under  these  statutes,3  and  it 
would  appear  that  exclusive  jurisdiction,  in  the  first  in- 
stance, has  been  conferred  upon  the  surrogate  to  appoint  the 
appraiser  who  is  to  value  the  taxable  property,  and  upon  his 
report  to  assess,  fix,  and  determine  the  liability  of  property 
to  this  tax,  and  to  enforce  payment  thereof,  subject  to  re- 
view by  appeal,  as  in  other  cases.4 

The  initial  steps  which  the  statute  requires  the  surrogate 
to  take  are  those  of  taxing  officers,  and  not  of  judges.  He 
appoints  an  appraiser  to  appraise  the  cash  value  of  the  prop- 
erty. Upon  the  coming  in  of  the  report  he  may  enter  an  or- 
der determining  the  cash  value  of  the  estate:  The  order 
may  be  based  upon  the  report,  or  upon  any  other  proof  be- 
fore him,  and  this  he  does  "as  of  course."  But  the  party 
aggrieved  may  take  an  appeal  from  the  order  thus  made  to 
the  surrogate,  and  then  for  the  first  time  the  procedure  takes 
on  a  judicial  character.5 

The  act  of  1887  6  provided  that  the  surrogate  should  have 
jurisdiction  to  hear  and  determine  all  questions  in  relation  to 
the  tax.  The  same  provision  is  contained  in  the  transfer  tax 
act  of  1892.7  The  power  and  jurisdiction  of  the  surrogate 
under  these  acts  is  now  definitely  settled  under  the  New 
York  statutes  by  many  recent  adjudications.  He  has  full 
power  to  determine  all  questions  of  liability  or  exemption. 
When  we  read  all  the  provisions  of  these  acts  it  is  perfectly 
apparent  that  an  especial  system  of  taxation  was  created 

a  In  re  McPherson,  104  N.  Y.  323,  324,  10  N.  E.  685. 

*  Appendix,  I.  a,  Laws  N.  Y.  18S7,  c.  713,  §  15;  In  re  McPherson, 
supra.  See  U.  S.  v.  Trucks,  27  Fed.  541;  Central  Trust  Co.  v.  New 
York  City  &  N.  R.  Co.,  47  Hun,  587;  Id.,  reversed  on  another  point, 
110  N.  Y.  250,  IS  N.  E.  02;  Anderson  v.  Anderson,  112  N.  Y.  104,  113, 
19  N.  E.  427.     See  chapter  5,  §§  50,  55. 

s  Weston  v.  Goodrich  (1895;    Sup.)  33  N.  Y.  Supp.  382. 

e  Chapter  713,  §  15. 

7  Appendix,  I.  e,  c.  399,  §  10. 

(349) 


§    62  SURROGATES,   DISTRICT    ATTORNEYS,   ETC.  [Cll.  7 

for  the  benefit  of  the  state  with  all  the  necessary  machinery 
for  its  working;  the  control  with  respect  to  which  was  vest- 
ed in  the  surrogate's  court,  with  a  jurisdiction  exclusive  in 
its  nature.  In  the  assessment  of  a  tax  upon  property  pass- 
ing by  will  or  by  the  intestate  law  the  responsibility  is  im- 
posed by  law  upon  the  surrogate.  He  acts  for  the  state, 
and  he  is  commanded  to  assess  and  fix  the  tax  to  which  the 
property  is  liable;  and  his  authority  to  assess  involves  the 
necessity  as  well  as  the  power  to  determine  the  question  of 
liability,  as  much  as  it  does  in  the  case  of  assessors  of  taxes 
in  the  general  scheme  of  taxation.8 

Under  this  power  it  has  been  held,  under  the  act  of  1887, 
that  the  surrogate's  decree  obtained  by  the  executor  of  a 
decedent  exempting  certain  institutions  from  taxation,  with- 
out previous  notice  to  any  state  official,  was  conclusive  upon 
the  state,9  and  a  bar  to  any  proceeding  by  the  state  thereafter 
to  recover  the  tax  alleged  to  be  due;  the  court  holding  that 
no  state  official  was  entitled  to  notice  under  that  act.10  By 
the  act  of  1892,  however,11  notice  of  these  proceedings  is 
now  required  to  be  given  to  the  county  treasurer  or  comp- 
troller, and  the  proceeding  will  be  void  without  such  notice.12 

Under  these  provisions  of  the  statutes  the  surrogate  has 
full  power  to  construe  a  will.  Hence  where  the  will  of  dece- 
dent attempted  to  create  certain  trusts  for  the  disposition  of 
his  residuary  estate,  which  were  void  as  contravening  the  st  t- 
ute  against  perpetuities,  and  were  so  conceded,  and  the  bene- 

s  In  re  Wolfe,  137  N.  Y.  205,  33  N.  E.  156,  reversing  66  Him,  389, 
21  N.  Y.  Supp.  515,  522,  distinguished  in  Re  Smith's  Estate  (Suit.) 
23  N.  Y.  Supp.  762.  In  re  Ullmann,  137  N.  Y.  403,  33  N.  E.  480;  Weston 
v.  Goodrich  (  Sup.)  33  N.  Y.  Supp.  382;  In  re  Park's  Estate,  8  Misc. 
Rep.  550,  29  N.  Y.  Supp.  1081. 

9  As  to  conclusiveness  of  surrogate's  decree,  see  Bliss,  Code  Civ. 
Proc.  N.  Y.  (4th  Ed.)  §  2743. 

io  in  re  Wolfe,  supra. 

ii  Appendix,  I.  e,  c.  399,  §  12. 

12  Chapter  8,  pp.  391,  400. 
(350) 


Ch.   7]  SURROGATES,   DISTRICT    ATTORNEYS,   ETC.  §   G2 

ficiaries  under  the  residuary  clause  abandoned  all  claim  to 
the  real  estate  embraced  therein  to  the  heirs,  who  sold  it, 
received  the  consideration  therefor,  and  out  of  the  purchase 
money  made  provisions  for  payment  of  the  tax  in  case  they 
were  held  liable,  the  surrogate  has  jurisdiction  to  determine 
that  the  residuary  estate  did  not  pass  to  the  legatees  or 
devisees,  but  to  the  heirs  and  next  of  kin,  and  that  a  decree 
assessing  the  heirs  for  that  portion  of  the  estate  which 
passed  to  them  was  valid.13 

In  the  Ullmann  Case  it  was  held  that  the  surrogate's  court 
had  power  to  decide  under  these  statutes  every  question 
that  may  arise  in  a  proceeding  under  the  act  which  may  be 
necessary  to  fully  discharge  the  duties  imposed  by  it.  Said 
court,  therefore,  may  and  must  decide  whether  any  property 
of  the  decedent  has  passed  to  another  under  the  will  or  un- 
der the  laws  of  intestacy,  and  so  may  determine  as  to  wheth- 
er dispositions  made  by  a  will  of  decedent  are  void,  and  if 
so  that  the  property  embraced  therein  has  passed  to  heirs 
or  next  of  kin,  under  the  statutes  of  descent  and  distribu- 
tion.14 

The  surrogate  has  power  to  pass  upon  the  validity  of  a 
bequest  in  the  appraisement  proceeding.15 

Under  these  provisions,16  he  has  power,  where  there  are 
debts  subsequently  proved  against  the  estate,  to  direct  a 
transfer  tax  to  be  refunded  while  it  is  still  in  the  hands  of 
the  county  treasurer.17 

And  where  the  tax  has  been  paid  into  the  state  treasury, 
and  debts  are  subsequently  proved,  the  state  comptroller 

is  In  re  Ullmann,  137  N.  Y.  403,  33  N.  E.  480,  reversing  67  Hun,  5, 
21  N.  Y.  Supp.  758. 

14    In  re  Ullmann,  supra. 

is  in  re  Bradshaw,  13  N.  Y.  Law  J.  854;  citing  In  re  Ullmann, 
supra. 

is  Laws  1892,  c.  399,  §  10. 

17  in  re  Park's  Estate,  supra. 

(351) 


§    G2  SURROGATES,   DISTRICT    ATTORNEYS,  ETC.  [Ch.   7 

may  be  authorized  to  refund  an  equitable  proportion  of  tlie 
tax  paid.18 

The  jurisdiction  of  the  surrogate  being,  in  the  first  in- 
stance, exclusive,  the  supreme  court  of  the  state  has  no  ju- 
risdiction to  determine,  in  the  first  instance,  whether  prop- 
erty of  a  deceased  person  is  subject  to  a  collateral  inherit- 
ance or  transfer  tax  under  these  statutes,  even  though  such 
question  be  raised  in  an  action  in  equity  in  which  other 
forms  of  relief  are  demanded  which  are  within  such  court's 
jurisdiction.19  Parker,  J.,  said:  "Instead  of  providing  for 
the  appointment  of  assessors  or  collectors  or  taxing  officers, 
under  some  other  name,  to  execute  the  provisions  of  the 
law,  the  legislature  not  unwisely  determined  that  the  sur- 
rogates of  the  several  counties  of  the  state  were  in  a  posi- 
tion to  more  economically  and  effectively  enforce  collection 
of  the  tax  than  any  other  agency  that  could  be  devised,  and 
so  the  surrogates  were  made  special  taxing  officers,  and 
charged  with  the  duty  of  enforcing  the  collection  of  this 
special  state  tax,  upon  such  notice  to  those  interested,  and 
in  the  manner  provided  by  the  statute.  That  the  statute 
constituted  the  surrogate,  and  he  alone,  the  assessing  and 
taxing  officer,  and,  as  such,  the  only  representative  of  the 
state,  in  the  first  instance,  for  all  purposes  relating  to  the 
appraisement  and  taxation  of  property,  will  clearly  appear, 
from  a  brief  reference  to  certain  of  its  provisions.20  *  *  * 
The  supreme  court  has  no  jurisdiction  to  make  an  assess- 
ment which  the  town  assessor  is  required  to  make,  in  the 
first  instance,  nor  has  it,  in  the  absence  of  statutory  author- 
is  In  re  Park's  Estate,  supra;  citing  Laws  1892,  c.  399,  §  6. 
io  Weston  v.  Goodrich,  supra,  citing  In  re  Wolfe  and  In  re  Ullmanu, 
supra,  and  distinguishing  cases  in  which  jurisdiction  had  been  exer- 
cised by  the  supreme  court  without  being  questioned.  See  McVean  v. 
Sheldon,  48  Hun,  163;  Catlin  v.  Trustees  of  Trinity  College,  49  Hun, 
278,  1  N.  Y.  Supp.  808;  Id.,  113  N.  Y.  133,  20  N.  E.  864;  Talmadge  v. 
Seaman,  9  Misc.  Rep.  303,  30  N.  Y.  Supp.  304,  reversed  as  In  re 
Seaman  (Oct.  8,  1S95;  Ct.  App.)  41  N.  E.  401. 
20  The  court  then  cited  Laws  1892,  c.  399,  §§  10,  11,  13,  15,  18. 
(352) 


Ch.   7]  SURROGATES,   DISTRICT    ATTORNEYS,  ETC.  §   62 

ity,  the  right  to  usurp  the  fuuctious  of  the  surrogate,  as  a 
taxing  officer  under  the  taxable  transfer  act.  The  question 
of  liability  to  taxation  is  a  fact  to  be  determined  by  the  as- 
sessors, and  which  gives  them  jurisdiction  to  assess.  It  is 
a  conditional  step  in  the  proceeding  for  assessment;  and 
the  court  cannot,  in  advance  of  action  by  the  assessors,  take 
that  question  away  from  them.  *  *  *  Authority  to  pass 
upon  the  merits  of  assessments  has  been  conferred  upon  the 
court  by  statute; 21  but  authority  to  assess  or  command  the 
assessment  of  taxes  is  neither  a  part  of  the  original  juris- 
diction of  the  supreme  court  nor  has  it  ever  been  conferred 
upon  it  by  the  legislature,  which  alone  has  power  to  deter- 
mine all  questions  of  state  necessity  involved  in  ordering  a 
tax,  and  in  selecting  the  agencies  for  its  collection." 

But  by  an  act  passed  by  the  New  York  legislature  of  1895, 
after  the  rendition  of  the  above  decision,22  it  is  now  provid- 
ed that  the  supreme  court  of  the  state  may  exercise  juris- 
diction in  cases  of  fraudulent,  collusive,  or  erroneous  assess- 
ments, the  act  providing  that,  within  two  years  after  the 
entry  of  an  order  or  decree  of  a  surrogate  determining  the 
value  of  an  estate  and  assessing  the  tax  thereon,  the  comp- 
troller of  the  state  may,  if  he  believes  that  such  appraisal, 
assessment,  or  determination  has  been  fraudulently,  collu- 
sively,  or  erroneously  made,  make  application  to  a  justice 
of  the  supreme  court  of  the  judicial  district  in  which  the 
former  owner  of  such  estate  resided  for  a  reappraisal  there- 
of. The  justice  to  whom  such  application  is  made  may 
thereupon  appoint  a  competent  person  to  reappraise  such 
estate.  Such  appraiser  shall  possess  the  powers,  be  subject 
to  the  duties,  and  receive  the  compensation  provided  by  sec- 
tions 11  and  12  of  the  act.  The  report  of  such  appraiser 
shall  be  filed  with  the  justice  by  whom  he  was  appointed, 

2i  Laws  18S0,  c.  260. 

22  Appendix,  I.  e,  Laws  1S95,  c.  556,  amending  Laws  1892,  c  399. 
§  13. 

law  inher. — 23  (353) 


§    62  SUBROGATES,   DISTRICT    ATTORNEYS,  ETC.  [Ch.  7 

and  thereafter  the  same  proceedings  shall  be  taken  and  had 
by  and  before  such  justice  as  are  herein  provided  to  be 
taken  and  had  by  and  before  the  surrogate.  The  determi- 
nation and  assessment  of  such  justice  shall  supersede  the 
determination  and  assessment  of  the  surrogate,  and  shall 
be  filed  by  such  justice  in  the  office  of  the  state  comptroller. 
Proceedings  have  already  been  initiated  by  the  state  comp- 
troller under  this  act. 

The  surrogate  first  acquiring  jurisdiction  under  the  act 
retains  such  jurisdiction  throughout  all  proceedings,  even 
as  to  real  estate  situate  in  another  county;  hence  the  tax 
should  be  paid  in  the  county  where  jurisdiction  is  first  ac- 
quired.23 

Where  the  surrogates  of  the  county  of  New  York  cannot 
act,  it  would  seem  that  the  court  of  common  pleas  for  that 
county  may  exercise  jurisdiction.24 

Subject  to  the  right  of  review  by  appeal,  the  surrogate 
is  deemed  to  be  the  superior  authority  upon  all  questions, 
including  that  of  the  value  of  the  estate  which  is  subject 
to  the  tax.25 

He  is  not  bound  by  the  appraiser's  report,  or  by  the  facts 
which  appeared  before  him,  but  he  may  hear  such  new  evi- 
dence and  statements  as  may  be  properly  presented.26 

As  we  have  already  seen,27  his  decree  declaring  an  ex- 
emption under  the  acts  of  1S85  and  1887  was  held  conclu- 

23  in  re  Keenan  (Suit.)  5  N.  Y.  Supp.  200;  In  re  Keith's  Estate 
■(Surr.)  5  N.  Y.  Supp.  201. 

24  in  re  Cunningham,  7  N.  Y.  Law  J.  954. 

25  in  re  Astor,  6  Dem.  Sur.  402,  2  N.  Y.  Supp.  630;  In  re  Frowe,  3 
N.  Y.  Supp.  134;  Frazer  v.  People,  6  Dem.  Sur.  174,  3  N.  Y.  Supp. 
134.  See  Stinger  v.  Com.,  26  Pa.  St.  424;  Strode  v.  Com.,  52  Pa.  St. 
186. 

26  in  re  McPherson,  supra;  In  re  McGowan's  Estate,  3  N.  Y.  Law  J. 
888. 

27  In  re  Wolfe,  137  N.  Y.  205,  33  N.  E.  156,  distinguished  in  Re 
Smith's  Estate  (Surr.)  23  N.  Y.  Supp.  763. 

(354) 


Ch.   7]  SURROGATES,  DISTRICT    ATTORNEYS,   ETC.  §    02 

give  upon  the  state  and  its  officials,  even  where  they  were 
not  notified,  or  given  proper  opportunity  to  be  heard.28 

But  now,  by  the  act  of  1892,29  the  county  treasurer,  or 
comptroller  of  the  county,  must  be  notified  of  all  proceed- 
ings under  the  act,  otherwise  they  are  void,  as  against  the 
state.30 

The  surrogate's  decree  is  conclusive,  however,  upon  the 
rights  of  an  adopted  son,  who  had  legal  notice  of  the  ap- 
praisement, and  the  decree  is  unaffected  by  a  subsequent 
change  or  amendment  of  the  law.31 

ISTo  proceeding  will  be  made  by  the  surrogate,  of  his  own 
motion,  to  enforce  payment  of  the  tax,  until  the  expiration 
of  18  months  from  the  decedent's  death.32 

He  has  power  to  enforce  his  decrees  under  these  statutes 
by  such  proceedings  and  methods  as  are  provided  for  the 
enforcement  of  the  usual  decrees  of  his  court.33 

Against  persons  interested  in  the  property  liable  to  the 
tax,  other  than  executors,  administrators,  and  trustees,  the 
surrogate  has  the  power,  on  return  of  an  execution  issued 
on  his  decree,  to  enforce  it  by  proceedings  for  contempt;34 

2  8  Chapter  8,  §  66;  In  re  Wolfe,  supra.  See  post,  p.  398;  In  re  Mc- 
pherson, supra;  In  re  Vanderbilt's  Estate  (Surr.)  10  N.  Y.  Supp.  239. 

29  Appendix,  I.  e,  c.  399,  §  12. 
so  Chapter  8,  §  66,  p.  398. 

31  In  re  Miller,  6  Dem.  Sur.  119,  affirmed  47  Hun,  394;  Id.,  110  N.  Y. 
216,  18  N.  E.  139;  In  re  Astor,  6  Dem.  Sur.  40S;  In  re  Kemeys,  56 
Hun,  117,  9  N.  Y.  Supp.  182.  As  to  adopted  children,  see  chapter  3, 
§  37;  chapter  8,  §  69. 

32  in  re  Astor,  supra. 

3  3  in  re  McPherson,  104  N.  Y.  323,  10  N.  PJ.  685;  In  re  Ullraann. 
137  N.  Y.  403,  33  N.  E.  480. 

34  In  re  Prout's  Estate  (Surr.)  3  N.  Y.  Supp.  831;  In  re  Oilman's  Es- 
tate, 6  Dem.  Sur.  358;  Code  Civ.  Proc.  §  2555;  In  re  Vanderbilt's  Es- 
tate (Suit.)  10  N.  Y.  Supp.  239;  In  re  Pelton's  Estate,  57  Hun.  590, 
10  N.  Y.  Supp.  642;  In  re  Curtis,  73  Hun,  191,  25  N.  Y.  Supp.  909. 

(355) 


§    62  SURROGATES,  DISTRICT    ATTORNEYS,  ETC.  [Ch.   7 

also  by  execution  and  attachment  against  the  person,35  but 
execution  should  first  issue. 

As  to  executors,  administrators,  and  trustees,  applica- 
tion for  an  order  directing  them  to  pay  the  tax  may  be  made 
to  the  surrogate  without  leave.36 

So  it  would  appear  that  the  surrogate  has  power  to  order 
a  reference  in  these  proceedings  upon  any  disputed  ques- 
tions of  fact,  or  to  determine  them  himself,  affording  the 
parties  the  right  of  examination  and  cross-examination,  or 
the  submission  of  such  proof  as  he  may  deem  proper.37 
But  it  is  doubtful  whether  the  surrogate  has  any  jurisdic- 
tion to  compel  a  legatee  to  repay  an  executor  for  taxes 
paid  by  the  latter  for  the  legatee's  benefit.38 

It  is  held  that  he  has  no  jurisdiction  to  determine  the 
liability  of  an  executor  to  pay  the  tax  on  motion  of  the 
executor,  but  only  by  proceedings  instituted  by  the  district 
attorney  as  provided  by  the  statute.39 

Upon  this  subject  the  law  of  New  York  40  provides,  in 
effect,  that  whenever  the  comptroller  or  county  treasurer  of 
any  county  shall  have  reason  to  believe  that  any  tax  is  due 
and  unpaid,  after  the  "refusal  or  neglect"  of  the  persons 

8  5  in  re  Cockey,  8  N.  Y.  Law  J.  1507. 

86  In  re  Prout's  Estate,  supra. 

87  See  In  re  Pearsall,  51  Hun,  639,  4  N.  Y.  Supp.  365;  Code  Civ. 
Proc.  §  2546;  In  re  McPherson,  104  N.  Y.  323,  10  N.  E.  685;  In  re 
Astor,  6  Dem.  Sur.  416  (see  this  case  for  rules  established  by  the 
surrogate  of  New  York  county  under  this  act). 

38  See  In  re  Underhill,  117  N.  Y.  471,  22  N.  E.  1120;  In  re  Keech's 
Estate  (Surr.)  7  N.  Y.  Supp.  331,  affirmed  57  Hun,  588,  11  N.'Y.  Supp. 
265. 

8  9  In  re  Farley,  15  N.  Y.  St.  Rep.  729;  In  re  Arnett,  49  Hun,  599, 
2  N.  Y.  Supp.  428;  In  re  Jones,  5  Dem.  Sur.  30;  In  re  Vanderbilt's 
Estate,  supra.     But  see  In  re  Wolfe,  137  N.  Y.  205,  33  N.  E.  156. 

«o  Appendix,  I.  a,  Act  1SS7,  c.  713,  §§  16,  17. 
(356) 


Ch.  7]  SURROGATES,   DISTRICT    ATTORNEYS,   ETC.  §    62 

interested  41  in  the  property  liable  to  said  tax  to  pay  the 
same,  he  shall  notify  the  district  attorney  of  the  proper 
county,  in  writing,  of  such  failure  or  neglect,  and  the  latter, 
if  he  have  probable  cause  to  believe  a  tax  is  due  and  unpaid, 
shall  prosecute  the  proceeding  in  the  surrogate's  court  for 
the  enforcement  and  collection  of  such  tax.  By  the  act  of 
1892,42  it  is  now  provided  that  the  district  attorney  shall 
apply  to  the  surrogate's  court  for  a  citation,  citing  the  per- 
sons liable  to  pay  such  tax  to  appear  before  the  court  on 
the  day  specified, — not  more  than  three  months  after  the 
date  of  such  citation, — and  show  cause  why  the  tax  should 
not  be  paid.  The  surrogate,  upon  such  application,  and 
whenever  it  shall  appear  to  him  that  any  such  tax  has  not 
been  paid  as  required  by  law,  shall  issue  such  citation; 
and  the  service  of  such  citation,  and  the  time,  manner,  and 
proof  thereof,  and  the  hearing  and  determination  thereon, 
and  the  enforcement  of  the  determination  or  order  made  by 
the  surrogate,  shall  conform  to  the  provisions  of  the  Code 
of  Civil  Procedure  for  the  service  of  citations  out  of  the 
surrogate's  court,  and  the  hearing  and  determination  there- 
on, and  its  enforcement,  so  far  as  the  same  may  be  appli- 
cable. 

The  provision  requiring  the  comptroller  to  have  "reason 
to  believe"  that  a  tax  is  due,  and  the  district  attorney  "to 
have  probable  cause"  to  believe  a  tax  is  due,  are  evidently 
synonymous  in  meaning;  and  they  would  seem  to  disclose 
an  intention  on  the  part  of  the  legislature  to  vest  each  of 
those  officials  with  discretionary  power  to  determine  pre- 
liminarily, to  their  own  satisfaction,  upon  the  facts  of  each 
case,  whether,  in  their  judgment,  there  is  good  ground  for 
believing  a  tax  to  be  due  and  unpaid,  so  as  to  warrant  the 
commencement  of  a  proceeding  to  collect.      Hence  it  would 

41  As  to  meaning  of  "persons  interested,"  see  In  re  Arnett,  supra; 
In  re  Wagner's  Estate,  119  N.  Y.  32,  23  N.  E.  200. 

42  Laws  1892,  c.  399,  §  lo,  as  amended  Laws  1893,  c.  378.  §  1. 

(357) 


§   62  SURROGATES,   DISTRICT    ATTORNEYS,  ETC.  [Ch.   7 

seem  that  their  mere  reasons  for  believing  a  tax  to  be  due 
and  unpaid  cannot  be  controverted  by  the  party  against 
whom  the  proceeding  is  brought.43 

The  law  44  has  reference  only  to  a  case  where  a  tax  is 
due  and  has  not  been  paid.  The  tax  may  be  due  because 
the  surrogate  had  so  determined,45  or,  where  no  proceedings 
have  been  had  for  appraisement,  etc.,  the  comptroller  and 
district  attorney  may  believe  a  tax  to  be  due,  and  in  either 
case  the  machinery  may  be  set  in  motion  to  collect  through 
the  provisions  of  the  statute.46  In  such  a  proceeding  the 
question  of  liability  can  be  determined  by  the  surrogate.47 

From  the  fact  that  the  act  requires  the  proceeding  to  be 
prosecuted  by  the  district  attorney,  it  would  seem  proper  to 
institute  it  in  his  name.  He  has  the  right  to  prosecute  to 
decree  the  proceeding  instituted  by  him  to  compel  payment 
of  the  tax;  and  where  begun  first  by  him  it  has  precedence 
over  any  proceeding  begun  by  the  executor.48  The  estab- 
lished practice  in  New  York  county,  and,  perhaps,  elsewhere 
in  the  state,  is  for  the  last-named  officer  to  petition  the  court 
upon  his  own  verified  petition,49  setting  forth  the  necessary 
facts,50  and  citing,  upon  due  notice,  all  persons  interested  in 
the  property  liable  to  the  tax,  to  wit,  the  county  treasurer 
or  comptroller,  the  executor,  administrator,  or  trustee,  and 
the  legatees  or  devisees  entitled  to  the  taxable  interest,  to 
show  cause  why  the  tax  should  not  be  paid.  These  persons, 
and  all  others  interested  in  the  estate,  are  entitled  to  no- 

43  See  In  re  Vanderbilt's  Estate  (Suit.)  10  N.  Y.  Supp.  239. 

44  Section  17  of  the  act  of  1887. 

45  Under  Laws  1887,  §  13. 
4  6  Laws  1887,  §§  16,  17. 

47  In  re  Wolfe,  137  N.  Y.  205,  213,  33  N.  E.  156,  distinguished  in 
Re  Smith's  Estate  (Suit.)  23  N.  Y.  Supp.  762. 

48  in  re  Eaton.  13  N.  Y.  Law  J.  622. 
4  0  See  Forms,  Appendix,  527. 

60  in  re  Vanderbilt's  Estate,  supra.     See  In  re  Arnett,  49  Hun,  GO;;. 
2  N.  Y.  Supp.  428. 
(358) 


Ch.   7]  SURROGATES,  DISTRICT    ATTORNEYS,  ETC.  §    62 

tice,  in  order  that  they  may  have  an  opportunity  to  be  heard 
upon  the  proceeding.  The  proceeding,  as  to  persons  not 
notified  or  heard,  becomes  absolutely  void.51 

But  the  district  attorney  has  no  power  to  institute  any 
proceedings  to  collect  the  tax  unless  and  until  notified  by 
the  comptroller  or  county  treasurer  of  such  refusal  or  neg- 
lect 52  of  the  persons  liable  to  pay  the  tax.53  The  district 
attorney,  though  not  formally  cited,  is,  however,  a  proper 
party  upon  a  final  accounting  of  an  executor,  as  being  in- 
terested in  the  estate,54  upon  behalf  of  the  state,  for  the 
purpose  of  collecting  the  tax,  and  even  though  the  state  has. 
not  been  cited;55  though  upon  such  a  proceeding  it  seems 
he  will  not  be  entitled  to  the  payment  of  the  tax  until  the 
tax  has  been  fixed,  after  citation  to  all  persons  interested, 
as  required  by  the  act.56 

Under  the  act  of  1887,  in  order  to  afford  the  representa- 
tives of  the  estate  a  reasonable  time  in  which  to  settle  its. 

si  Chapter  8,  §  66;  In  re  McPherson,  104  N.  Y.  322,  323,  10  N.  E. 
685;  In  re  Miller's  Estate,  110  N.  Y.  216,  224,  18  N.  E.  139;  In  re  Van- 
derbilt's  Estate  (Surr.)  10  N.  Y.  Supp.  239;  In  re  Cockey,  8  N.  Y.  Law 
J.  1507. 

52  See  Frazer  v.  People,  6  Dem.  Sur.  174.  Under  the  acts  of  con- 
gress a  refusal  or  neglect  only  arises  after  demand  made.  U.  S.  v. 
Pennsylvania  Co.,  27  Fed.  539. 

53  in  Re  Jones,  5  Dem.  Sur.  30,  it  was  suggested  that  the  only  way 
by  which  the  surrogate  can  compel  the  executor  or  administrator 
to  pay  the  tax  is  to  refuse  to  allow  him  credit  upon  his  accounting, 
etc.  But  it  is  apparent  that  the  district  attorney  is  given  ample 
power  under  the  act  to  proceed  directly  on  notice  from  the  county 
treasurer  or  comptroller.  See  Appeudix,  I.  a,  c— Laws  1S87,  c.  113,. 
§  17;  Laws  1892,  c.  399,  §  15;  Laws  1S95,  c.  378,  §  1;  In  re  Arnett, 
supra;  In  re  Vanderbilt's  Estate,  supra;  In  re  Wolfe,  137  N.  Y.  205, 
33  N.  E.  156. 

5-t  Words  "person  interested  in  the  estate"  defined.     In  re  Wagner's 
Estate,  119  N.  Y.  32,  23  N.  E.  200. 
ss  in  re  Arnett,  supra;    citing  Code  Civ.  Proc.  §  2731. 
es  Laws  N.  Y.  1887,  c.  713,  §§  13-16. 

(359) 


§    62  SURROGATES,   DISTRICT    ATTORNEYS,   ETC.  [Ch.   7 

affairs  it  was  held  that  no  proceedings  could  be  commenced 
upon  behalf  of  the  state  to  compel  payment  of  the  tax  until 
after  the  expiration  of  18  months  from  decedent's  death.57 

Where  a  tax  is  unpaid,  and  a  proceeding  is  instituted  by 
the  district  attorney  under  the  statute  to  collect  the  same, 
the  executor  or  trustee  becomes  personally  liable  for  the 
costs,58  the  amount  of  which  was  regulated  by  the  Code  un- 
der the  acts  in  existence  prior  to  the  act  of  1892.59  Such 
costs  are  now  regulated  by  the  act  of  1892,60  which  provides 
that  the  costs  awarded  by  any  decree  of  the  surrogate,  after 
the  collection  and  payment  of  the  tax  to  the  treasurer  or 
comptroller,  may  be  retained  by  the  district  attorney  for 
his  own  use.  Such  costs  shall  be  fixed  by  the  surrogate  in 
his  discretion,  but  shall  not  exceed,  in  any  case  where  there 
has  not  been  a  contest,  the  sum  of  $100,  or,  where  there  has 
been  a  contest,  the  sum  of  $250. 

It  seems  the  district  attorney  is  not  entitled  to  costs  un- 
less he  is  successful.61  An  application  for  costs,  under  this 
section,  which  alleges  the  filing  of  a  petition  to  compel  pay- 
ment of  the  tax,  the  issuance  of  a  citation  thereon,  and  that 
the  proceeding  was  commenced  in  good  faith,  after  notice 
from  the  comptroller  that  the  tax  had  not  been  paid,  but 

67  Frazer  v.  People  (Surr.)  3  N.  Y.  Supp.  134;  In  re  Astor,  6  Deru. 
Sur.  402,  412. 

es  in  re  Minturn's  Estate,  3  N.  Y.  Law  J.  804;  In  re  Cockey,  8  N. 
Y.  Law  J.  1507. 

69  Code  Civ.  Proc.  §  2561;  In  re  Stucke,  N.  Y.  Daily  Reg.  April  25, 
1889;  In  re  Pond,  N.  Y.  Daily  Reg.  June  13,  1S89.  But  see  In  re 
Enston,  5  Dem.  Sur.  95.  Under  section  2561  the  district  attorney 
is  entitled  to  $70  where  there  is  a  contest  and  $25  where  there  is  no 
contest.  In  re  Stucke,  supra.  As  to  what  is  not  a  "refusal  or  neg- 
lect" to  pay  taxes,  so  as  to  bar  the  district  attorney  from  costs  under 
section  17  of  the  statute,  and  when  he  is  entitled  to  costs  under  sec- 
tion 19,  Act  1887,  see  Frazer  v.  People,  supra. 

eo  Chapter  399,  §  15,  as  amended  by  Laws  1895,  c.  378. 

6i  In  re  Clarke,  10  X.   Y.   Law  J.  775;    In  re  McCarthy's  Estate 
(Suit.)  25  N.  Y.  Supp.  9S7. 
(3  GO) 


Ch.    7]  SURROGATES,   DISTRICT    ATTORNEYS,   ETC.  §    62 

which  did  not  show  facts  from  which  the  surrogate  could 
determine  as  to  the  existence  of  "probable  cause"  for  the 
proceeding,  is  insufficient  to  warrant  the  surrogate  in  grant- 
ing costs.62 

Ransom,  S.,  said:  "It  will  be  seen,  therefore,  that  the  sec- 
tion provides  clearly  and  systematically  for  the  manner  in 
which  the  expenses  of  these  three  proceedings  shall  be  de- 
frayed: First.  For  proceedings,  instituted  by  the  district 
attorney,  in  which  he  is  successful  in  collecting  the  tax. 
That  it  refers  to  successful  proceedings  is  apparent  from  the 
provision  that  the  costs  may  be  retained  by  the  district  at- 
torney for  his  own  use.  Such  costs,  except  as  to  the  amount, 
are  governed  by  the  section  of  the  Code  and  the  rules  of  the 
court  applicable  to  other  proceedings  therein.  Rule  22  pre- 
scribes the  practice  whenever  a  party  shall  deem  himself  en- 
titled to  costs  which  include  any  disbursements  to  which  he 
may  believe  himself  entitled.63  Second.  For  proceedings  in 
which  the  district  attorney  is  unsuccessful.  This  is  intend- 
ed as  a  precaution  against  the  indiscriminate  commence- 
ment of  proceedings  without  sufficient  preliminary  inquiries, 
and  calls  for  the  judicial  determination  by  the  surrogate, 
upon  proof,  that  there  was  probable  cause  for  commencing 
the  same.  The  affidavit  in  the  case  at  bar  simply  sets 
forth  that  the  comptroller  notified  the  district  attorney,  and 
that  the  proceedings  were  commenced  in  good  faith.  It 
furnishes  no  evidence  as  to  the  facts  and  circumstances 
from  which  the  court  may  form  an  opinion  as  to  the  exist- 
ence of  probable  cause.  That  the  comptroller  believed  that 
there  was  a  tax  due,  and  that  the  district  attorney  had  prob- 
able cause  to  believe  that  the  tax  was  due,  is  not  sufficient 
basis  on  which  this  court  should  find  judicially  that  proba- 
ble cause  existed."  64 

62  in  re  McCarthy's  Estate  (Sum)  25  N.  Y.  Supp.  9S7. 
es  Code  Civ.  Proc.  N.  Y.  §  2r>.->9. 
«4  In  re  McCarthy's  Estate,  supra. 

(361) 


§    62  SURROGATES,   DISTRICT    ATTORNEYS,   ETC.  [Ch.   7 

Where  the  comptroller  or  county  treasurer  is  a  successful 
party,  the  Code  G5  applies,  and  he  is  entitled  to  $70  costs  of 
contest  and  $10  each  for  trial  days  exceeding  two;  and  the 
surrogate's  discretion  in  awarding  costs  will  not  be  re- 
viewed on  appeal  except  for  sufficient  cause.66 

The  tax  should  be  paid  to  the  treasurer  of  the  county 
where  jurisdiction  is  first  acquired.67 

In  New  York  the  county  treasurer  or  comptroller  must 
pay  the  appraiser's  fees  out  of  any  moneys  in  his  hands  re- 
ceived on  account  of  taxes,  even  though  he  may  have  re- 
ceived nothing  as  yet  from  the  estate  appraised  by  the  ap- 
praiser; and  mandamus  will  lie  to  compel  him  to  pay  the 
fees  due.68 

In  Pennsylvania 69  the  proceedings  to  collect,  where  the 
tax  is  not  paid,  within  one  year  after  decedent's  death,  to 
the  register  of  wills,  are  begun  in  the  orphans'  court,70  by 
bill  or  petition  filed  by  the  register.  And  the  court  is  au- 
thorized, upon  his  application,  to  cite  the  executor  or  ad- 
ministrator to  file  an  account  or  to  cite  them  and  the  heirs 
to  show  cause  why  the  tax  should  not  be  paid;  and  the 
register  may  thus  compel  payment  from  the  executor  or  ad- 
ministrator who  has  neglected  to  pay  the  tax.71 

6  5  Bliss,  Code  Civ.  Proc.  (4th  Ed.)  §  2561. 

6  6  in  re  Hoffman's  Estate,  7G  Huii,  391),  27  N.  Y.  Supp.  10S6. 

67  in  re  Keenan  (Suit.)  5  N.  Y.  Supp.  200;  In  re  Keith's  Estate  (Surr.> 
5  N.  Y.  Supp.  201.  Qufiere,  as  to  the  right  of  the  comptroller  or  coun- 
ty treasurer  to  sue  the  executor  at  law  for  these  taxes.  See  In  re 
Jones,  5  Dem.  Sur.  36;  Montague  v.  State,  54  Md.  483;  Torrey  v. 
Willard,  55  Hun,  78,  8  N.  Y.  Supp.  392. 

6  8  in  re  Murray,  per  Bartlett,  J.,  Kings  Co.,  N.  Y.  Sup.  Ct,  opinion 
not  reported.  As  to  commissions  of  county  treasurer  and  effect  of 
his  receipt  for  taxes,  see  In  re  Keenan,  supra. 

eo  See  Scott,  Intest.  Laws  (Pa.)  p.  1871. 

to  Appendix,  III.,  Laws  1887,  p.  79,  §§  14,  15. 

7i  In  re  Cullen's  Estate,  26  W.  N.  C.  216.  As  to  duties  of  register 
and  liability  of  his  sureties,  see  Com.  v.  Toms,  45  Pa.  St.  408;  Scott, 
Intest.  Laws,  p.  315.  Effect  of  register's  receipt  in  full  for  taxes, 
(3G2) 


Ch.   7]  SURROGATES,  DISTRICT    ATTORNEYS,   ETC.  §    63 


§  63.     Executors,  Administrators,  and  Trustees. 

In  New  York,  Pennsylvania,  and  many  other  states  the 
statutes  substantially  provide  that  all  executors,  adminis- 
trators, and  trustees  shall  be  personally  liable  for  any  and 
all  legacy  and  succession  taxes  until  the  same  shall  have 
been  paid  as  directed  by  law.72  The  commonwealth  has 
a  right  to  be  heard  on  the  question  of  the  appointment  of 
an  administrator  in  respect  to  estates  subject  to  the  tax. 
A  claimant  otherwise  entitled  will  be  refused  letters  of  ad- 
ministration, where  it  is  shown  that  he  has  authorized  or 
permitted  the  removal  of  personal  property  of  decedent 
from  the  state,  when  the  tendency  of  such  removal  is  to  the 
hindrance  or  delay  of  the  state  in  the  collection  of  the  in- 
heritance tax,  or  the  lessening  of  her  security  therefor.73 

Generally,  in  all  cases  where  such  taxes  are  not  paid  with- 
in a  year  after  decedent's  death,  such  executors,  administra- 
tors, and  trustees  must  give  a  bond  conditioned  to  pay  the 
same,  with  interest.74  Under  the  New  York  act  of  1892,75 
such  taxes  are  due  and  payable  at  the  time  of  the  trans- 
fer, i.  e.  the  death  of  decedent,  excepting  in  case  of  contin- 

see  In  re  Brewer's  Estate,  15  Pittsb.  Law  J.  435;  36  Pittsb.  Law  J. 
114.  As  regards  interest,  see  Appeal  of  Commonwealth  (Fagely's 
Estate)  128  Pa.  St.  613,  18  Atl.  386.  As  to  fees  of  county  treas- 
urers and  their  successors,  see  Stephen  v.  Com.,  4  Watts,  123. 

72  Appendix,  I.  a,  e,  III.,  VII.,  VIII.,— Laws  N.  Y.  1SS7,  §  1;  Laws 
1892,  c.  399,  §  3;  Laws  Pa.  1887,  p.  79,  §  1;  Laws  Conn.  1889,  c.  180, 
§§  1,  16;  Laws  Md.  18SS,  p.  242,  §  102.  See  In  re  Vamlerbilt's  Es- 
tate (Suit.)  10  N.  Y.  Supp.  239;  In  re  Miuturn's  Estate,  3  N.  Y.  Law 
J.  804;  In  re  Boyd's  Estate,  4  Wkly.  Notes  Cas.  510;  In  re  Cullen's 
Estate,  26  Wkly.  Notes  Cas.  216.  For  note  on  "Executor's  Duty  as 
to  Inheritance  Tax,"  see  29  Abb.  N.  C.  358. 

73  Robertson's  Estate  (1S92)  49  Leg.  Int.  190,  1  Pa.  Dist.  R.  317. 

7  4  Appendix,  I.  a,  e,  VIII. —Laws  N.  Y.  1887,  c.  713,  §  4;    Laws  N. 
Y.  1892,  c.  399,  §  7;    Laws  Md.  §  117. 
7  5  Laws  1892,  c.  399,  §  3. 

(303) 


§    G3  SURROGATES,  DISTRICT    ATTORNEYS,  ETC.  [Ch.   7 

gent  or  future  estates,  where  the  fair  market  value  cannot 
be  ascertained  at  the  time  of  the  transfer.  In  such  cases 
the  tax  becomes  due  and  payable  when  the  persons  or  cor- 
porations beneficially  entitled  thereto  shall  come  into  actual 
possession  or  enjoyment  thereof.  The  tax  shall  be  paid  to 
the  treasurer  or  comptroller  of  the  county  of  the  surrogate 
having  jurisdiction;  and  said  treasurer  or  comptroller  shall 
give,  and  every  executor,  administrator,  or  trustee  shall 
take,  duplicate  receipts  from  him  of  such  payment,  one  of 
which  he  shall  immediately  send  to  the  comptroller  of  the 
state,  whose  duty  it  shall  be  to  charge  the  treasurer  or 
comptroller  so  receiving  the  tax  with  the  amount  thereof, 
and  to  seal  said  receipt  with  the  seal  of  his  office  and  coun- 
tersign the  same  and  return  it  to  the  executor,  administra- 
tor, or  trustee,  whereupon  it  shall  be  a  proper  voucher  in 
the  settlement  of  his  accounts;  but  no  executor,  adminis- 
trator, or  trustee  shall  be  entitled  to  a  final  accounting  of 
an  estate  in  settlement  of  which  a  tax  is  due,  unless  he 
shall  produce  a  receipt  so  sealed  and  countersigned  by  the 
comptroller,  or  a  copy  thereof  certified  by  him,  or  unless  a 
bond  shall  have  been  filed  as  prescribed  by  the  act.76  And 
by  further  provision  the  executor  or  administrator  is  re- 
quired to  deduct  the  tax  from  any  legacy  or  property  sub- 
ject to  the  tax  before  paying  the  legacy  over  to  the  lega- 
tee; 77  and  he  cannot  deliver  or  be  compelled  to  deliver  any 
specific  legacy  or  property  subject  to  the  tax  to  any  per- 
son until  he  shall  have  collected  the  tax  thereon.78 

Such  executors  have  full  power  to  collect  the  tax  from 

7  6  Laws  1892,  c.  399,  §  7. 

77  Appendix,  I.  a,  e,  III.,  VII.,  VTII.,— Laws  Md.  §§  103,  104,  114; 
Laws  Conn.  §  5;  Laws  N.  Y.  1887,  c.  713,  §  6;  Laws  N.  Y.  1S92,  c. 
399,  §  5;   Laws  Pa.  §  5. 

"Cases  supra;   In  re  Howe,  112  N.  Y.  103,  19  N.  E.  513,  affirming 
4S  Hun,  235.     See  Com.  v.  Smith,  5  Pa.  St.  144;  In  re  King's  Estate. 
11  Phila.  26;   Com.  v.  Coleman,  52  Pa,  St.  473. 
(364) 


Ch.   7]  SURROGATES,  DISTRICT    ATTORNEYS,  ETC.  §    03 

the  legatee,  and  to  sell  so  much  of  the  property  of  the  de- 
cedent as  will  enable  them  to  pay  the  tax.™ 

Where  the  funds  in  the  executors  hands  are  sufficient  to 
pay  legacies  and  to  satisfy  all  disputed  claims,  the  execu- 
tor may  pay  the  legacies;  but  he  should  be  protected  in  re- 
spect to  any  transfer  tax,  interest,  and  penalty.  He  was 
directed  to  pay  the  legacies,  retaining  10  per  cent,  of  each 
legacy  to  cover  the  last-named  items.80 

In  New  York  the  liability  of  the  administrators,  exec- 
utors, or  trustees  is  regulated  by  the  statute  of  1892, 81 
providing  that  where  they  have  in  charge  or  trust  any  leg- 
acy or  property  for  distribution,  subject  to  said  tax,  they 
shall  deduct  the  tax  therefrom,  or,  if  the  legacy  or  prop- 
erty be  not  money,  they  shall  collect  the  tax  thereon,  upon 
the  appraised  value  thereof,  from  the  legatee  or  person  en- 
titled to  such  property,  and  they  shall  not  deliver,  or  be 
compelled  to  deliver,  any  specific  legacy  or  property  subject 
to  tax  to  any  person  until  they  shall  have  collected  the  tax 
thereon.  When  the  executor  has  collected  the  tax  upon 
the  appraised  value  of  the  property  except  money,  his  duty 
is  ended.  If  he  pays  the  legacy,  or  any  portion  of  it,  with- 
out first  deducting  the  tax,  he  becomes  personally  liable  to 
the  state  for  the  amount.  He  must  collect  the  tax  upon 
personal  property  from  the  assets  within  his  hands,  and 
he  is  not  authorized  to  collect  it  from  any  other  source. 
Whether  a  legacy  is  of  much  or  little  value,  or  whether  it 
will  sell  for  its  face  or  not,  is  a  matter  with  which  he 
has  nothing  to  do,  and  over  which  he  has  no  control.  He 
must  deduct  the  tax  or  collect  it  from  the  property  in  his 
hands.     He  can  maintain  no  action  against  the  legatee  for 

79  Appendix,  I.  a,  e,  III.,  VII. ,  VIII.,— Laws  N.  Y.  1SS7,  c.  713,  §  7; 
Laws  N.  Y.  1S92,  c.  399,  §  5;   Laws  Md.  §§  104,  114;  Laws  Ccmn.  §  8. 
so  in  re  Perkins,  13  N.  Y.  Law  J.  1152. 
si  Laws  1892,  c.  399,  §  3. 

(365) 


-§   G3  SURROGATES,   DISTRICT    ATTORNEYS,   ETC.  [Ch.  7 

the  recovery  of  the  tax  on  personal  property.  He  must 
get  it  from  the  assets  in  his  hands,  and,  having  done  this, 
his  duty  is  ended.82 

Where  the  business  of  the  partnership  testator  was  con- 
cerned in  was  to  be  continued  by  the  executors  till  it  could  b.' 
disposed  of  to  advantage,  and  this  course  was  essential  to 
realizing  its  full  value,  the  assessment  and  collection  of  the 
tax  should  be  postponed  until  the  beneficiaries  come  into 
actual  possession.83 

And  they  are  permitted  to  receive  a  fair  or  reasonable 
compensation  under  the  will  in  lieu  of  commissions,  which 
compensation  is  exempt  from  taxation.84 

Where  an  executor  renounces  his  commission  he  is  not  li- 
able to  taxation  thereon.85 

The  act  of  1892  s6  provides  that  if  a  testator  bequeathes 
or  devises  property  to  one  or  more  executors  or  trustees  in 
lieu  of  their  commissions  or  allowances,  or  makes  them  his 
legatees  to  an  amount  exceeding  the  commissions  or  allow- 
ances prescribed  by  law  for  an  executor  or  trustee,  the  ex- 
cess in  value  of  the  property  so  bequeathed  or  devised,  above 
the  amount  of  commissions  or  allowances  prescribed  by  law 
in  similar  cases,  shall  be  taxable.  This  differs  from  a  some- 
what similar  provision  contained  in  the  act  of  1887.87 

Where  the  will  of  decedent  bequeathed  a  certain  share  of 
her  estate  to  her  executors  "as  extra  compensation,  in  addi- 
tion to  the  commissions  allowed  by  law,  and  in  satisfaction 
of  the  services  they  have  rendered  me  during  my  lifetime," 

8  2  in  re  Weed's  Estate  (1894)  10  Misc.  Rep.  628,  32  N.  Y.  Supp.  779. 

8  3  in  re  Wheeler's  Estate,  1  Misc.  Rep.  450,  22  N.  Y.  Supp.  1075. 

8  4  Appendix,  I.  a,  III.,  VII.,— Laws  N.  Y.  1S87,  c.  713,  §  3;  Laws  Pa. 
1887,  p.  79,  §  2;   Laws  Conn.  1S89,  c.  180,  §  3. 

so  O wings  v.  State,  22  Md.  110. 

8G  Appendix,  I.  e,  Laws  N.  Y.  1S92,  c.  399,  §  8. 

8  7  Appendix,  I.  e,  Laws  1S87,  c.  713,  §  3;   In  re  Sidell's  Estate,  8 
:N.  Y.  Law  J.  1404. 
(3GG) 


€h.   7]  SURROGATES,   DISTRICT    ATTORNEYS,    ETC.  §    G3 

held,88  that  the  bequest  would  be  taxable  to  the  extent  it 
exceeded  a  fair  compensation  for  such  services.88 

Where  the  bequest  is  uot  a  gratuity,  but  in  lion  of  com 
pensation  for  the  executors'  services,  and  the  testator  has 
fixed  what  he  deems  to  be  a  reasonable  compensation,  it  is 
■exempt.  It  is  the  reasonable  compensation  provided  in  the 
will  which  is  the  test,  for  otherwise  a  testator  might  be- 
queath property  to  a  person  not  exempt,  in  consideration 
for  insignificant  services,  and  thus  evade  the  tax.90 

A  bequest  to  an  executor  of  a  certain  sum  over  and  above 
his  legal  commissions  and  expenses  is  not  within  the  act  of 
1887,91  providing  that  when  a  bequest  is  made  to  an  execu- 
tor in  lieu  of  commissions  the  excess  of  such  devise  above  a 
reasonable  compensation  for  his  services  is  subject  to  the 
inheritance  tax.92 

Where  a  legacy  for  services  as  executors  is  claimed  to  be 
exempt,  the  state  has  the  right  to  inquire  into  the  services 
rendered,  their  character,  and  value;  and  to  the  extent  only 
that  the  bequest  constituted  a  gratuity,  and  not  a  consider- 
ation, it  will  be  taxable.93 

The  burden  is  upon  the  executors  to  prove  the  extent  and 
value  of  such  services.94 

Where  a  provision  is  made  in  the  will  for  the  executors 
in  lieu  of  commissions,  the  question  of  their  liability  to  tax- 
ation will  be  deferred  until  an  accounting,  when  the  serv- 
ices have  been  rendered  and  the  reasonableness  of  the  com- 
pensation determined.  Where  an  accounting  has  been  had, 
if  it  is  sought  to  have  the  question  of  the  liability  of  the 

ss  Under  Act  1892. 

89  In  re  Sidell's  Estate,  8  N.  Y.  Law  J.  (March  23,  1893)  1404. 
so  iu  re  Meyers,  5  N.  Y.  Law  J.  532. 
9i  Laws  1887,  e.  713,  §  3. 

»2  iu  re  Underbill's  Estate  (Suit.)  20  N.  Y.  Supp.  134. 
93  in  re  Richardson,  S  N.  Y.  Law  J.  1392;    In  re  Meyers,  supra; 
In  re  Reilly,  3  N.  Y.  Law  J.  (July,  1890)  796. 

»4  In  re  Underbill's  Estate  (Suit.)  20  N.  Y.  Supp.  134. 

(307) 


§    63  SURROGATES,   DISTRICT    ATTORNEYS,   ETC.  [Ch.    7 

bequests  to  taxation  determined,  another  appraisement 
must  be  had,  where  proof  may  be  introduced  on  this  issue.05 

Until  the  services  have  been  rendered  by  the  executor  or 
trustee,  some  of  the  cases  hold,  the  question  will  be  sus- 
pended until  an  accounting  is  had.06 

These  commissions  and  expenses  of  administration  are 
not  deductible  by  the  appraiser.  In  fact,  the  statute  in 
terms  does  not  authorize  the  appraiser  to  deduct  anything 
from  the  fair  market  value  of  the  property.97 

Under  any  circumstances,  inasmuch  as  the  tax  is  due  and 
payable  at  death,  and  the  appraisement  must  be  made  as  of 
that  date,  or  as  soon  thereafter  as  practicable,  the  state 
cannot  be  compelled  to  wait  the  final  accounting  of  the  ex- 
ecutor for  the  purpose  of  having  it  determined  whether 
his  commissions  are  taxable  as  being  in  excess  of  the  stat- 
utory rate.98  A  contrary  view  of  this  subject  has  recently 
been  taken,  holding  that  the  appraiser  and  surrogate  have 
power  to  ascertain  and  deduct  the  commissions  of  executors, 
and  expenses  of  administration.99  The  executors  are  fur- 
ther authorized,  under  the  New  York  statutes,100  to  procure 
the  appointment  of  an  appraiser,101  for  the  purpose  of  hav- 

95  In  re  Hope,  8  N.  Y.  Law  J.  1164;  In  re  Havens,  3  N.  Y.  Law  J. 
900. 

9  6  in  re  Havens,  3  N.  Y.  Law  J.  900;  In  re  Hope,  8  N.  Y.  Law  J. 
1164.  Executors  are  only  legally  entitled  to  commissions  and  ex- 
penses after  an  accounting  and  decree  by  the  surrogate.  See  Code 
Civ.  Proc.  N.  Y.  §  2730,  and  notes  to  3  Bliss'  Code,  p.  3200. 

0  7  See  In  re  Millward's  Estate  (Suit.)  27  N.  Y.  Supp.  286;  In  re 
Ludlow's  Estate  (Sun-.)  25  N.  Y.  Supp.  989;  In  re  Swift,  137  N.  Y.  77, 
32  N.  E.  1096;  Id.,  per  Ransom,  S.,  16  N.  Y.  Supp.  193,  affirmed  in 
19  N.  Y.  Supp.  292;    In  re  Vassar,  127  N.  Y.  8,  27  N.  E.  394. 

9  s  in  re  Vassar  and  cases  supra. 

09  in  re  Gould,  13  N.  Y.  Law  J.  7S1. 

ioo  Appendix,  I.  a,  e,  Laws  1887,  c.  713,  §  13;  Laws  1892,  c.  399, 
§  11. 

ioi  None  is  necessary  where  the  legacies  are  in  cash,  the  surro- 
gate assessing  and  fixing  the  tax  upon  the  cash  value.  In  re  Astor, 
(308) 


Ch.   7]  SURROGATES,   DISTRICT    ATTORNEYS,  ETC.  §    63 

ing  the  tax  fixed  by  the  surrogate  upon  the  value  appearing 
in  the  appraiser's  report.  It  is  primarily  the  duty  of  the  ex- 
ecutor to  apply  for  an  appraisement,  and  the  power  given  to 
the  surrogate  of  his  own  motion  to  cause  an  appraisement 
to  be  made  and  to  fix  the  tax  was  not  intended  to  relieve 
personal  representatives  of  this  obligation.102  The  subject 
of  the  appraisement  has  already  been  considered,103  but 
such  executors,  administrators,  and  all  other  persons  inter- 
ested in  the  estate  are  entitled  to  notice  of  the  time  and 
place  of  making  the  appraisement,  and  of  all  other  proceed- 
ings under  these  acts.104 

That  it  is  the  duty  of  every  personal  representative,  where 
the  tax  is  due,  before  paying  over  any  legacy  or  share,  to 
exact  from  the  person  who  is  to  receive  it  a  sum  sufficient 
to  pay  the  tax,105  or  to  deduct  the  tax  therefrom,  unless  the 
will  directs  the  same  to  be  paid  from  the  general  estate,  has 
frequently  been  determined  under  these  statutes.106 

6  Dem.  Sur.  402;  In  re  Jones,  5  Dem.  Sur.  30;  In  re  Bird's  Estate 
(Surr.)  11  N.  Y.  Supp.  S95.  Contra,  In  re  Peek  (Suit.)  9  N.  Y.  Supp. 
465.     And  see  chapter  5,  §  51. 

102  Frazer  v.  People,  6  Dem.  Sur.  174.  But  see  In  re  Farley,  15  N. 
Y.  St.  Rep.  727. 

103  Chapter  5. 

104  Laws  1S92,  c.  399,  §  12;  Coxe's  Appeal,  1  Purd.  Dig.  (10th  Ed.) 
218;  In  re  McPherson,  104  N.  Y.  322,  323,  10  N.  E.  685;  In  re  Van- 
derbilt's  Estate  (Surr.)  10  N.  Y.  Supp.  239;  In  re  Lenox's  Estate 
(Surr.)  9  N.  Y.  Supp.  895. 

105  Supra,  p.  365;  Sohier  v.  Eldridge,  103  Mass.  349;  Hathaway  v. 
Fish,  13  Allen,  267;  Montague  v.  State,  54  Md.  483;  Hunter  v. 
Husted,  Busb.  Eq.  (N.  C.)  141;  Attorney  General  v.  Allen,  6  Jones' 
Eq.  (N.  C.)  141;  Com.  v.  Coleman,  52  Pa.  St.  473;  In  re  Howe,  112 
N.  Y.  103,  19  N.  E.  513,  affirming  48  Hun,  235. 

loe  Shippen  v.  Burd,  42  Pa.  St.  461,  464;  In  re  Holbrook's  Es- 
tate, 3  Pa.  Co.  Ct.  R.  265,  44  Leg.  Int.  1S6;  In  re  Murphey's  Estate, 
4  Pa.  Co.  Ct  R.  336;  Com.  v.  Smith,  5  Pa.  St.  145;  Wright's  Appeal, 
38  Pa.  St.  512;  In  re  Thomson's  Estate,  5  Wkly.  Notes  Cas.  19;  Theob. 
Wills  (1st  Ed.)  57. 

LAW  INHER. — 24  (S69) 


§   63  SURROGATES,  DISTRICT    ATTORNEYS,  ETC.  [Ch.   7 

In  New  York  it  is  held  that  a  mode  of  payment  of  the  suc- 
cession tax  prescribed  by  will  is  something  with  which  the 
statute  is  not  concerned,  and  that  manifestly,  under  the  law, 
that  which  is  to  be  reported  by  the  appraiser  for  the  purpose 
of  the  tax  is  the  value  of  the  interest  passing  to  the  legatee 
under  the  will,  without  any  deduction  for  any  purpose  or 
under  any  testamentary  direction.107 

Under  the  English  law  in  valuing  a  succession  to  lands 
vested  in  trustees,  the  cestui  que  trust  cannot  deduct,  as 
"necessary  outgoings,"  reasonable  expense  of  management 
incurred,  independently  of  his  control,  by  the  trustees  under 
an  authority  given  by  will.108 

But  statutes  making  it  the  duty  of  executors  to  pay  mean 
domestic  executors  and  administrators,  as  it  is  not  to  be 
presumed  that  the  legislature  intended  to  control  or  impose 
liabilities  upon  foreign  personal  representatives  or  foreign 
decedents,  as  they  are  not  subject  to  its  jurisdiction.  Such 
statutes,  it  has  been  held,  cannot  be  enforced.109  But,  as 
we  have  already  seen,110  the  decisions  upon  this  point  were 
based  upon  the  ground  that  there  was  no  intention  on  the 
part  of  the  legislature  to  tax  nonresident  decedents.  But, 
where  such  intention  exists,  the  state  has  undoubted  power 
to  tax  the  property  of  foreign  decedents  within  its  jurisdic- 

107  in  re  Swift,  137  N.  Y.  77,  32  N.  E.  1096. 

los  in  re  Earl  Cowley,  L.  R.  1  Exch.  2SS. 

109  Kintzing  v.  Hutchinson,  34  Leg.  Int.  365;  In  re  Enston,  fL3 
N.  Y.  180,  21  N.  E.  84,  by  a  divided  court;  In  re  Tulane,  51  Hun, 
213,  4  N.  Y.  Supp.  36.  See  In  re  Romaine,  127  N.  Y.  86,  27  N.  E. 
T59.  But  see  In  re  James,  144  N.  Y.  6,  3S  N.  E.  961;  In  re  Phipps, 
77  Hun,  325,  28  N.  Y.  Supp,  330,  affirmed  in  court  of  appeals  with- 
out opinion,  143  N.  Y.  641,  37  N.  E.  823.  See  an  article  entitled 
"Collateral  Inheritance  Tax  in  Connection  with  Transfer  of  Stocks 
and  Loans  by  Foreign  Executors  and  Administrators,"  by  E.  H. 
Blanc,  Esq.,  Alb.  Law  J..  April  16,  1892,  p.  331. 

no  Chapter  4,  §  47,  subd.   c. 
(370) 


"Ch.  7]  SURROGATES,  DISTRICT    ATTORNEYS,  ETC.  §    63 

tion,  and  to  enforce  payment  of  the  tax  from  persons  seek- 
ing to  obtain  such  property.111 

So  it  would  seem  that  domestic  executors  are  not  respon- 
sible for  the  tax  upon  real  property  situate  in  another  state 
at  the  death  of  the  testator,  although  the  proceeds  are  sub- 
sequently brought  within  the  taxing  state,  as  the  succession 
takes  place  to  such  property  under  the  law  of  the  place 
where  it  is  situate.112 

Hence  the  state  has  no  power  to  enforce  a  tax  in  the  na- 
ture of  a  direct  tax,  and  compel  the  executor  to  pay  it  upon 
such  foreign  real  estate.113 

But  where  the  will  of  a  resident  directs  that  his  foreign 
real  estate  be  converted  into  personalty  it  is  so  considered, 
and  the  executor  will  be  liable  for  the  tax  thereon.  This 
rule  exists  in  Pennsylvania114  and  in  England,  but  in  New 
York  the  subject  of  the  taxation  of  real  property  through 
the  doctrine  of  equitable  conversion  has  not  been  definitely 
determined  by  the  highest  courts,  and  the  question  remains 
doubtful.115 

By  the  Pennsylvania  statute  foreign  executors  and  admin- 
istrators are  to  pay  the  tax  on  stocks  transferred  within  the 
state,  and  if  they  default  the  corporation  permitting  the 
transfer  of  such  stock  is  liable.116 

A  similar  provision  in  the  New  York  statute  was  held  to 

in  Chapter  4,  §  47,  subd.  b,  et  seq. 

112  State  v.  Brevard,  Phil.  Eq.  (N.  C.)  141;  Alvany  v.  Powell,  2 
Jones,  Eq.  51;  Drayton's  Appeal,  61  Pa.  St.  172;  Com.  v.  Coleman, 
52  Pa.  St.  468;   In  re  Hood's  Estate,  21  Pa.  St.  (9  Harris)  106. 

us  In  re  Bittinger's  Estate  (Appeal  of  Commonwealth)  129  Pa.  St. 
338,  18  Atl.  132.    See  In  re  Dewey's  Estate,  N.  Y.  Law  J.  Oct.  21, 1889. 

H4  Chapter  4,  §  46,  subd.  b. 

us  See  chapter  4,  §  46,  subd.  b;  In  re  Swift,  137  N.  Y.  77,  32  N. 
E.  1096,  and  cases  there  cited;  In  re  Curtis,  142  N.  Y.  219,  36  N.  E. 
887. 

us  See  chapter  4,  §  47,  subd.  c;  Scott,  Intest.  Law  Pa.  1871,  p. 
547,  citing  In  re  Cook's  Estate,  9  Leg.  Int.  50.  Contra.  Kintzing 
v.  Hutchinson,  34  Leg.  Int.  365.     See  In  re  Cigala,  7  Ch.  Div.  351. 

(371) 


§   63  SUBROGATES,  DISTRICT    ATTORNEYS,  ETC.  [Ch.   7 

be  unenforceable  under  the  law  117  passed  in  1885,  but  un- 
der the  amended  statute  11S  taxing  nonresident  decedents* 
estates  this  provision  would  appear  to  be  enforceable  against 
the  representatives  of  such  decedents  seeking  to  transfer 
property  which  was  within  the  state  at  the  time  of  death.119 

There  are  further  exceptions  to  the  rule  requiring  the  ex- 
ecutor or  administrator  to  deduct  the  tax,  as  where  real 
estate  passes  directly  to  the  devisees,  and  in  intestacy  to 
the  heirs.  It  is  then  no  part  of  the  executor's  or  adminis- 
trator's duty  to  pay  the  tax.  Those  who  take  the  lands  are 
liable  therefor.120 

So  it  would  seem  that  an  administrator  has  no  right  to 
pay  the  tax  upon  real  estate  out  of  the  personalty,  as  his 
rights  and  liabilities  are  limited  to  the  latter  property.121 

In  Pennsylvania,  if  it  is  an  intestate  estate^  and  adminis- 
tration is  granted  there,  to  enable  the  administrator  to  col- 
lect the  assets,  he  pays  the  tax  out  of  the  aggregate  of  the 
estate  before  distribution.  If  a  will  be  proved  and  admin- 
istered, the  executor  deducts  the  collateral  tax  from  the  de- 
vised property,  unless  the  will  otherwise  directs.122 

And  an  executor  is  not  liable,  as  such,  for  a  collateral 
tax  due  the  state  upon  a  devise  of  land  to  himself,  though 
he  be  liable  as  an  individual;  but  his  coexecutors  are  so 
liable.123 

117  in  re  Enston,  supra. 
usAppendix,   I.,   Laws   1887. 

us  See  chapter  4,  §  47,  subds.  b,  c,  and  cases  cited;  In  re  Ro- 
maine,    In  re  James,  and  eases  supra. 

120  in  re  Boyd's  Estate,  4  Wkly.  Notes  Cas.  510;  In  re  Forbes' 
Estate,  16  Phila.  356;   Com.  v.  Coleman,  52  Pa.  St.  468. 

121  Com.  v.  Coleman,  supra. 

122  Com.  v.  Coleman,  supra;  Com.  v.  Smith,  5  Pa.  St.  144;  In  re 
King's  Estate,  11  Phila.  26.  As  to  duties  of  administrator  in  Penn- 
sylvania under  these  statutes,  see  Scott,  Int.  Law  (Pa.;   1871)  p.  535. 

123  state  v.  Brevard,  Phil.  Eq.  (N.  C.)  141.  See  In  re  Farley,  15  N. 
Y.  St.  Rep.  727. 

(372) 


Ch.   7]  SURROGATES,  DISTRICT    ATTORNEYS,   ETC.  §    63 

But  few  adjudications  have  thus  far  been  made  in  this 
country  determining  the  extent  of  the  personal  liability  of 
executors,  administrators,  or  trustees  for  the  payment  of 
the  tax  under  the  statutory  provisions  heretofore  enumerat- 
ed. Under  the  English  statutes  the  executor  or  other  rep- 
resentative is  held  primarily  liable  to  pay  the  duty,124  and 
where  such  executor  fails  to  deduct  the  duty,  or  the  legatee 
fails  to  pay  the  amount  thereof,  both  he  and  the  legatee  ac- 
cepting the  legacy  or  share  125  become  personally  liable  for 
the  tax.126 

Where  the  executor  is  compelled  to  pay  the  duty,  he  has 
an  appropriate  remedy  over  against  the  legatee,  the  ques- 
tions relating  to  which  subject  are  considered  in  the  chapter 
relating  to  the  remedy  and  practice  under  these  acts.127 

It  is  doubtful  whether,  under  the  acts  of  congress,  the 
executor  was  liable  in  personam  for  the  legacy  duty.128 

There  was  no  personal  liability  upon  the  legatee  unless 
it  appeared  that  he  had  custody  or  possession  of  the  prop- 
erty itself,  or  of  the  legacy,  and  refused  to  pay  the  tax  after 
a  demand  made  as  required  by  the  statute.129 

On  failure  of  the  executor  or  administrator  to  pay,  the  tax 
suit  was  maintainable  against  the  individual  in  possession 
to  enforce  the  statutory  lien.130     So,  under  the  succession 

124  Bate  t.  Payne,  13  Q.  B.  900. 

125  Attorney  General  v.  Munby,  3  Hurl.  &  N.  826;  Foster  v.  Ley,  2 
Bing.  N.  C.  276;   In  re  McPherson,  104  N.  Y.  323,  10  N.  E.  6S5. 

1 2  6  in  re  Sammon,  3  Mees.  &  W.  381 ;  Bate  v.  Payne,  supra ;  In  re 
Wilkinson,  1  Cromp.,  M.  &  R.  142;  Hales  v.  Freeman,  1  Brod.  &  B. 
391;  15  &  16  Vict.  c.  51,  §  44;  36  Geo.  III.  c.  52,  §  6;  13  &  14  Vict, 
c.  97,  §  8. 

i27  See  cases  supra,  and  post,  §  64,  and  chapter  8,  §  66. 

128  u.  S.  v.  Allen,  9  Ben.  154,  Fed.  Cas.  No.  14,430;  U.  S.  v.  Trucks, 
27  Fed.  541. 

129  U.  S.  v.  Trucks,  supra;  U.  S.  v.  Pennsylvania  Co.,  27  Fed.  539; 
12  Stat.  485,  §  112. 

iso  U.  S.  v.  Trucks,  supra, 

(373) 


§   G3  SURROGATES,  DISTRICT    ATTORNEYS,   ETC.  [Ch.   7 

duty  act  of  congress,131  the  person  beneficially  interested  in 
the  property  was  the  one  liable  to  pay  the  tax,  and  not  the 
trustee  or  executor  in  whom  the  legal  title  vested  or  to 
whom  a  power  in  trust  was  given  for  the  benefit  of  such 
person.132 

In  Pennsylvania  executors  and  administrators  are  treated 
as  agents  of  the  state,  and,  as  such,  their  duty  is  to  retain 
the  tax  and  pay  it  over  to  the  proper  officers.133 

The  law  of  that  state 134  expressly  declares  that  the  tax 
on  real  estate  shall  remain  a  lien  thereon  until  paid,  and 
that 135  the  owners  of  all  estates  and  all  executors,  adminis- 
trators, and  their  sureties  shall  only  be  discharged  from  lia- 
bility for  the  amount  of  such  taxes  the  settlement  of  which 
they  may  be  charged  with  by  having  paid  the  same  over  as 
directed  by  law.  This  liability  is  perpetual,  and  the  limita- 
tions in  the  act  only  apply  to  purchasers  of  the  real  es- 
tate.136 

Where  the  tax  is  not  paid  within  the  time  limited  by  law, 
the  penalty  is  properly  chargeable  to  the  administrator  or 
executor.137 

In  New  York  it  has  recently  been  determined  that  a  per- 
sonal liability138  for  the  tax  is  imposed  upon  executors,  ad- 
ministrators, and  trustees  which  continues  until  the  tax  has 
been  paid.      Such  liability  becomes  fixed  where  the  repre- 

i3i  13  Stat.  285;   Act  June  30,  1S64,  §§  126,  127. 

132  u.  S.  v.  Tappan,  10  Ben.  284,  Fed.  Cas.  No.  16,431.  See  Sohier 
v.  Eldridge,  103  Mass.  349;   Hathaway  v.  Fish,  13  Allen,  267. 

133  Seibert's  Appeal  (Pa.  Sup.)  6  Atl.  105;  Wright's  Appeal,  38 
Pa.  St.  507. 

134  Appendix,  III.,  Laws  Pa.  1SS7,  p.  79,  §  3. 
13  5  Laws  Pa.  1S87,  p.  79,  §  1. 

136  Cullen's  Estate,  26  Wkly.  Notes  Cas.  216;  James'  Appeal,  2 
Del.  Co.  Rep.  164. 

137  in  re  Palmer's  Estate,  2  Del.  Co.  Rep.  ISO.  See  In  re  Min- 
turn's  Estate,  3  N.  Y.  Law  J.  804 

138  See  Laws  1892,  c.  399,  §  3. 
(374) 


Ch.   7]  SURROGATES,   DISTRICT    ATTORNEYS,  ETC.  §    63 

sentatives  pay  over  legacies  which  are  taxable  without  first 
deducting  the  tax  therefrom.  They  are  also  personally  lia- 
ble for  the  costs  of  the  proceeding.139 

In  considering  the  question  in  the  latter  state  under  the 
act  of  1887,  Ransom,  S.,  said:  "The  liability  of  executors 
for  the  tax  seems  to  be  certain.  Section  1  of  the  act  pro- 
vides that  they  shall  be  liable  for  any  and  all  such  taxes 
until  the  same  shall  have  been  paid.  Section  6  requires  an 
executor  having  in  charge  or  trust  any  legacy  or  property 
for  distribution  subject  to  said  tax,  to  deduct  the  tax  there- 
from if  it  be  money;  and  further  provides  that  he  shall  not 
be  compelled  to  deliver  any  specific  legacy  or  property  sub- 
ject to  tax  until  he  has  collected  the  tax  thereon.  Section 
8  requires  the  payment  to  the  comptroller,140  within  30  days, 
of  any  such  sum  retained  for  the  tax,  and  further  provides 
that  the  executor  shall  not  be  entitled  to  credit  in  his  ac- 
counts, nor  discharged  from  liabilitv  for  such  tax  until  he 
shall  produce  a  receipt  sealed  and  countersigned  by  the 
comptroller."  141  But  it  was  held  in  that  case  that  certain 
appraisement  proceedings  begun  by  the  executors  to  have 
the  tax  assessed  and  fixed  under  the  statute  to  which  nei- 
ther  the  state  nor  some  of  the  principal  legatees  were  par- 
ties was,  nevertheless,  under  the  circumstances  of  that  case, 
binding  upon  the  state  so  far  as  the  executors  were  con- 
cerned, and  relieved  them  from  personal  liability.  In  view 
of  the  express  language  of  the  statute,  quoted  from  the  opin- 
ion, it  is  doubtful  whether  this  result  is  sound  or  can  be 
maintained,  for  the  reason  that  neither  the  state  nor  some 
of  the  legatees  had  any  notice  or  were  parties  to  the  pro- 
ceeding, hence  they  were  not  bound  by  the  report  of  the  ap- 

139  In  re  Vanderbilt's  Estate  (Surr.)  10  N.  Y.  Supp.  239;  In  re 
Minturn's  Estate,  3  N.  Y.  Law  J.  S04. 

140  Or  county  treasurer. 

1*1  In  re  Vanderbilt's  Estate,  supra. 

(375) 


§   63  SURROGATES,   DISTRICT    ATTORNEYS,  ETC.  [Ch.  7 

praiser  or  by  the  decree  of  the  surrogate  thereon.  It  would 
seem  that  nothing  relieves  from  a  tax  excepting  payment  or 
a  decree  that  is  binding  upon  the  state.142  But  in  Re 
Wolfe  148  the  court  held,  under  the  acts  of  1885  and  1887, 
that  a  decree  of  the  surrogate  exempting  certain  charitable 
institutions  was  binding  upon  the  state,  although  neither  it 
nor  any  state  official  had  notice  of  the  proceeding;  that  the 
statute  did  not  intend  they  should  have  any  notice.  But 
by  the  act  of  1892  144  it  is  now  required  that  notice  shall  be 
served  upon  all  interested  parties,  including  the  county 
treasurer  or  comptroller,  as  representing  the  state. 

It  has  been  held  that  the  question  of  the  executor's  lia- 
bility cannot  be  determined  upon  his  own  motion,  and  that 
the  only  method  under  the  statute  by  which  such  liability 
can  be  determined  is  by  proceedings  instituted  by  the  dis- 
trict attorney  on  behalf  of  the  state  to  compel  payment  of 
the  tax.145 

But  a  receipt  "in  full"  for  the  tax  given  by  the  register  by 
mutual  mistake  justifies  the  executor  in  paying  the  legacies 
without  deduction,  and  he  cannot  suffer  injury  therefor 
where  he  has  acted  in  good  faith.146 

But  where  the  receipt  is  simply  for  the  amount  of  money 
fixed  by  the  court,  and  does  not  express  the  idea  that  the 
money  was  received  in  satisfaction,  discharge,  or  payment  of 
the  decree,  or  of  the  amount  of  the  tax  claimed  by  the  state, 

1*2  in  re  McPherson,  104  N.  Y.  323,  10  N.  E.  685;  In  re  Lenox,  9 
N.  Y.  Supp.  895;  Succession  of  Dupuy,  33  La.  Ann.  261;  Appeal  of 
Commonwealth  (Fagely's  Estate)  128  Pa.  St.  603,  613,  18  Atl.  386. 

143  137  n.  Y.  205,  33  N.  E.  156,  distinguished  in  Re  Smith's  Estate 
(Surr.)  23  N.  Y.  Supp.  762. 

144  Laws  1892,  c.  399,  §§  11,  12. 

145  in  re  Farley,  15  N.  Y.  St.  Rep.  727;  In  re  Arnett,  49  Hun,  599, 
2  N.  Y.  Supp.  428. 

146  in  re  Brewer's  Estate,  15  Tittsb.  Leg.  J.  (N.  S.)  345;  16  Pittsb. 
Leg.  J.  (X.  S.)  114;   Com.  v.  Freedley,  21  Pa.  St.  33. 

(37G) 


Ch.   7]  SURROGATES,  DISTRICT    ATTORNEYS,  ETC.  §    64 

it  will  not  act  as  an  estoppel,  so  as  to  prevent  the  state  from 
recovering  interest  legally  due; 14T  and  a  receipt  is  no  pro- 
tection to  the  executor,  or  other  representative,  as  against 
the  state,  for  taxes  due,  where  they  were,  by  reason  of  mis- 
take or  fraud,  omitted  to  be  paid.148 

The  liability  under  these  statutes,  of  the  personal  repre- 
sentatives, and  of  the  legatee,  where  he  accepts  the  legacy  or 
share,149  is  perpetual,  and  the  provision  of  the  statute  limit- 
ing the  lien  of  the  tax  to  a  certain  period  only  applies  to  pur- 
chasers of  the  realty,  and  not  to  such  representatives  or 
legatees.150 

§  64.     Liability    of    Executors,    Administrators, 
Trustees,  Heirs,  and  Legatees  inter  Se.m 

Except  where  some  personal  or  fixed  liability  is  incurred 
by  the  executor,  administrator,  or  trustee,  pursuant  to  stat- 

1*7  in  re  Fagely's  Estate,  supra. 

14  8  in  re  Astor,  6  Dem.  Sur.  402;  In  re  Brewer's  Estate,  supra; 
In  re  Bittinger's  Estate,  129  Pa.  St.  338,  18  Atl.  132;  In  re  Vander- 
bilt's  Estate,  supra;  In  re  Keenan  (Surr.)  5  N.  Y.  Supp.  200;  In  re 
Smith's  Estate  (Surr.)  23  N.  Y.  Supp.  762. 

149  Montague  v.  State,  54  Md.  483;  In  re  McPherson,  104  N.  Y. 
323,  10  N.  E.  685;  In  re  Vanderbilt's  Estate  (Sun-.)  10  N.  Y.  Supp. 
239;  U.  S.  v.  Truck's  Adm'r,  27  Fed.  541;  U.  S.  v.  Tappan,  10  Ben. 
284,  Fed.  Cas.  No.  16,431;  Sohier  v.  Eldridge,  103  Mass.  349;  Hath- 
away v.  Fish,  13  Allen,  267.  See  Torrey  v.  Willard,  55  Hun,  78,  8  N. 
Y.  Supp.  392;    Seibert's  Appeal  (Pa.  Sup.)  6  Atl.  105. 

loo  Mellon's  Appeal,  114  Pa.  St.  572,  8  Atl.  183;  In  re  Cullen's 
Estate,  26  Wkly.  Notes  Cas.  216;  James'  Appeal,  2  Del.  Co.  Rep. 
164.  As  to  when,  under  the  English  law,  the  purchaser  of  real  es- 
tate, under  agreement  to  buy  free  from  incumbrances,  becomes  liable 
to  pay  succession  duty,  as  between  himself  and  the  vendor,  see 
Cooper  v.  Trewby,  28  Beav.  194;  In  re  Langham,  60  Law  J.  Ch.  110; 
Dugdale  v.  Meadows,  L.  R.  9  Eq.  212. 

i5i  As  to  when  legacies  in  payment  of  debts  are  not  liable  to  tax, 
see  chapter  6,  §  61. 

(377) 


§    64  SURROGATES,   DISTRICT    ATTORNEYS,  ETC.  [Ch.   7 

ute,  in  refusing  or  neglecting  to  pay  the  tax  when  due  and 
payable,152  it  is  payable  primarily  out  of  the  taxable  interest 
by  the  persons  taking  the  property,  or  who  are  beneficially 
interested  therein,  and  not  out  of  the  general  estate.1 5i 
Under  the  New  York  statute  of  1892,154  the  tax  is  not  upon 
the  share  of  the  legatee,  as  formerly,155  but  is  upon  the  ag- 
gregate estate  "of  the  decedent  passing  to  persons  not  ex- 
empt." 156     The  same  rule  prevails  in  Pennsylvania.157 

But,  in  construing  wills,  questions  often  arise,  under  these 
statutes,  between  executors,  trustees,  and  legatees  inter  se, 
as  to  whether  decedent  intended  that  the  legacy  or  devise 
should  be  "free"  or  "clear"  of  the  tax;  in  other  words, 
whether  the  tax  should  be  borne  by  the  testator's  general 
estate,  and  thus  paid  by  the  executor  or  trustee  without  de- 
duction from  the  legacy,  or  solely  out  of  the  legatee's  in- 
terest.158 

There  is  no  doubt  that  a  testator  possesses  the  general 
power  to  relieve  the  legatees  from  the  payment  of  the  tax  by 

162  See  section  63,  supra. 

153  Chapter  3,  §  10. 

is*  Laws  N.  Y.  1892,  c.  399. 

155  in  re  Cager's  Will,  111  N.  Y.  343,  18  N.  E.  866;  In  re  Howe, 
112  N.Y.  100,  19  N.  E.  513. 

156  in  re  Hoffman's  Estate,  143  N.  Y.  327,  38  N.  E.  311.  But  see 
In  re  Sterling's  Estate  (Surr.;  1894)  30  N.  Y.  Supp.  3S5;  In  re  Skill- 
man's  Estate  (Surr.)  32  N.  Y.  Supp.  780. 

is?  in  ve  Howell's  Estate  (Appeal  of  Philadelphia  Protestant 
Episcopal  Mission,  1892)  147  Pa.  St.  164,  23  Atl.  403;  In  re  Mister's 
Estate  (1891)  10  Pa.  Co.  Ct.  R.  409,  with  note  by  S.  H.  Thomas,  Esq. 
See,  also,  note  by  C.  B.  Penrose,  Esq.,  49  Leg.  Int.  26.  Contra,  Com. 
v.  Kerchner,  6  Law  Rev.  SOS;   Evans'  Estate  (1891)  8  Law  Rev.  321. 

158  Hunter  v.  Husted,  Busb.  Eq.  141;  Attorney  General  v.  Allen,  6 
Jones,  Eq.  144;  Shippen  v.  Bui'd,  42  Pa.  St.  461;  Thomson's  Estate, 
5  Wkly.  Notes  Cas.  19;  Horter's  Estate,  1  Pears.  424;  Murphy's 
Estate,  4  Parker,  Cr.  R.  336;  Holbrook's  Estate,  3  Parker,  Cr.  R. 
263;  Com.  v.  Smith,  5  Pa.  St.  145;  Wright's  Appeal,  58  Pa.  St.  512; 
Sohier  v.  Eldridge,  supra;  Hathaway  v.  Fish,  supra;  In  re  Wilkin- 
(378) 


Ch.  7]  SURROGATES,  DISTRICT    ATTORNEYS,  ETC.  §    64 

throwing  it  on  the  residue  of  the  estate  where  it  is  sufficient 
to  make  payment,  but  an  intention  that  a  devise  shall  he 
"free"  of  the  tax,  as  between  the  estate  and  the  devisee,  must 
clearly  appear.  A  mere  declaration  that  it  is  to  be  clear 
of  all  charges  and  incumbrances,  or  other  legal  demands, 
is  not  sufficient.159 

Where  the  legacy  or  annuity  is  expressly  relieved,  how- 
ever, by  the  terms  of  the  will,  from  the  tax,  the  estate  or 
executor  will  be  liable  therefor.160 

As  where  the  legacy  is  of  a  clear  or  annual  net  sum,  to  be 
paid  the  annuitant  out  of  the  fund  set  apart,  this  direction 
is  sufficient  to  make  the  estate  liable,  and  relieves  the  an- 
nuity.101 

The  provisions  of  a  will  exempting  legacies  from  collateral 
inheritance  tax,  and  making  such  tax  payable  by  the  exec- 
utors, applies  as  well  to  legacies  given  by  a  subsequent  codi- 
cil as  to  those  contained  in  the  will.162 

In  England,  where  the  will  clearly  releases  the  legacy  from 
the  duty,  it  must  be  paid  by  the  executors.163 

Under  the  New  York  statutes  the  rule  seems  to  be  differ- 
ent. A  clause  in  the  will  of  decedent  directed  that  the 
amount  of  the  tax  upon  legacies  and  devises  should  be 

son,  1  Cromp.,  M.  &  R.  160;  In  re  Howe,  112  N.  Y.  103,  19  N.  E.  513; 
In  re  Sherwell,  125  N.  Y.  376,  26  N.  E.  464;  In  re  Cager's  Will,  111 
N.  Y.  343,  18  N.  E.  866,  where  the  court  say  that  the  tax  is  upon 
the  individual.    See  Com.   v.   Kerchner,   24   Wkly.    Notes   Cas.   260. 

159  In  re  Forbes'  Estate,  16  Phila.  356;  In  re  Horter's  Estate,  supra; 
but  see  In  re  Swift,  137  N.  Y.  S7,  32  N.  E.  1096. 

leo  in  re  King's  Estate,  11  Phila.  30. 

i6i  In  re  Bispham's  Estate,  46  Leg.  Int.  98. 

162  in  re  Cunimings'  Estate  (1892)  30  Wkly.  Notes  Cas.  430,  12 
Pa.  Co.  Ct.  R.  45. 

163  Barksdale  v.  Gilliat,  1  Swanst.  562;  Bailey  v.  Boult,  21  Law  J. 
Ch.  277;  Fisher  v.  Brierley,  30  Beav.  267;  Foster  v.  Ley,  2  Bing.  N. 
C.  269.     See,  also,  cases  cited  in  Theob.  Wills  (3d  Ed.)  pp.  136-143. 

(379) 


§   64  SURROGATES,  DISTRICT    ATTORNEYS,  ETC.  [Ch.  7 

paid  as  expenses  of  administration.  Held,  that  no  deduc- 
tion should  be  made,  from  the  value  of  the  residuary  estate, 
of  the  amount  of  the  tax  to  be  assessed  upon  its  value,  or 
upon  the  prior  legacies;  that  a  mode  of  payment  of  the  tax 
prescribed  by  will  is  something  with  which  the  statute  is 
not  concerned.164 

Where,  however,  the  will  provided  that  the  devisees 
should  pay  "all  taxes,  ground  rents,  and  other  necessary 
and  legal  charges  upon  the  real  estate  devised  to  them," 
and  that  "not  wishing  such  gifts,  devises,  etc.,  to  be  inter- 
fered with  or  lessened,"  all  legitimate  charges  were  to  be 
paid  by  his  executors,  it  was  held  that  the  devisees,  and  not 
the  estate,  were  liable.185 

And  where  the  will  bequeathed  a  fund  to  trustees  to  re- 
ceive the  collected  income  and  produce  thereof,  and,  after 
deducting  all  proper  costs,  to  pay  the  residue  of  such  in- 
come to  the  beneficiary,  held,  that  the  duties  were  a  charge 
upon  the  latter's  income.166 

But  where  a  married  woman  had  a  general  power  of  ap- 
pointment, and  by  will  appointed  the  fund  and  nominated 
executors  of  her  will,  they,  and  not  the  trustees  of  the  in- 
strument by  "which  the  power  is  created,  were  held  to  be 
the  proper  persons  to  administer  the  trust  fund,  and  the 
executors  were  accordingly  held  liable  for  the  legacy 
duty.167 

is*  in  re  Swift  (1893)  137  N.  Y.  87,  32  N.  E.  1096;  Earl  Cowley, 
L.  R.  1  Ex.  Oh.  288.  As  to  when  succession  taxes  are  chargeable 
against  the  residuary  legatees,  etc.,  see  In  re  Van  Beuren,  4  N.  Y. 
Law  J.  1600.  As  to  when  it  is  error,  on  final  settlement  of  ex- 
ecutors' accounts,  to  direct  part  of  the  estate  to  be  held  for  the 
purpose  of  paying  legacy  taxes  and  expenses  of  administration,  see 
In  re  Lockwood  (1892)  63  Hun,  630,  17  N.  Y.  Supp.  771. 

ic5  Shippen  v.  Burd,  supra. 

lee  Sohier  v.  Eldridge,  supra;  Hathaway  v.  Fish,  supra. 

let  in  re  Philbrick's  Trust,  13  Wkly.  Hep.  570.     See,  also,  chapter 
6,  §  61. 
(380) 


Ch.   7]  SURROGATES,  DISTRICT    ATTORNEYS,  ETC.  §    64 

Under  the  laws  of  New  York  188  providing  that  an  heir 
or  devisee  shall,  out  of  his  own  property,  satisfy  any  mort- 
gage to  which  the  land  descended  or  devised  is  subject,  un- 
less the  will  directs  otherwise,  the  personal  estate  of  a  tes- 
tator who  devised  land  subject  to  mortgage  is  not  liable 
for  the  mortgage  debt,  to  the  exoneration  of  the  land,  un- 
less the  will  so  provides;  and  the  amount  of  the  mortgage 
will,  therefore,  be  deducted  from  the  value  of  the  land,  in 
assessing  the  transfer  tax.169 

Expenditures  by  trustees  directed  to  invest  moneys  in 
lands,  in  building  a  mansion  house,  cannot  be  deducted 
from  the  amount  of  the  estate  subject  to  legacy  duty  under 
the  English  statute  making  any  persons  who  would  become 
entitled  to  an  estate  in  the  lands  purchased  liable  to  such 
duty,  if  they  become  so  entitled  before  the  moneys  are  ac- 
tually applied.170 

Where  real  estate  passes  directly  to  the  devisees,  and 
in  intestacy  to  the  heirs,  it  is  no  part  of  the  executor's  or  ad- 
ministrator's duty  to  pay  the  tax.  Those  who  take  the 
lands  are  liable  therefor.171 

Where  the  executor  or  other  personal  representative  has 
been  compelled  to  pay  the  tax  after  he  has  paid  the  legacy 
in  full  to  the  heir  or  legatee  without  deduction,  the  ques- 
tion has  arisen  as  to  whether  such  heir  or  legatee  assumes 
any  liability  to  the  executor  for  the  amount  of  the  tax  so 
paid  for  the  legatee's  benefit.  In  such  cases  the  legatees 
have  been  held  liable,  in  England,172  to  the  executors  in 

168  1  Rev.  St  p.  749,  §  4. 

169  in  re  Kene  (1894)  8  Misc.  Rep.  102,  29  N.  Y.  Supp.  1078. 

170  Macfarlane  v.  Lord  Advocate  (1894)  6  Reports,  291. 

ifi  See  section  63,  supra;  In  re  Boyd's  Estate,  4  Wkly.  Notes  Cas. 
510;  In  re  Forbes'  Estate,  16  Phila.  356;  Com.  v.  Coleman,  52  Pa. 
St.  468. 

172  See  section  63,  supra,  chapter  8,  §  66. 

(381) 


§    64  SURROGATES,  DISTRICT    ATTORNEYS,  ETC.  [Ch.  7 

actions  at  law,173  and  the  same  rule  would  seem  to  exist, 
or  at  least  to  be  applicable,  under  the  statutes  in  this  coun- 
try,174 if  not  at  common  law,  as  for  money  paid  by  the  ex- 
ecutor by  compulsion  of  law  for  the  benefit  of  the  lega- 
tee.175 But  it  is  doubtful  whether,  in  New  York,  the  sur- 
rogate's court  has  jurisdiction  over  a  proceeding  of  this 
character,  or  can  compel  a  legatee  to  repay.  The  remedy 
would  seem  to  be  at  law.176 

Where  an  executor  has  paid  the  tax  upon  a  legacy  to 
an  infant,  with  the  knowledge  and  consent  of  the  latter's 
general  guardian,  such  executor  cannot,  on  a  subsequent 
accounting,  be  held  liable  by  a  guardian  ad  litem  for  the 
amount  so  paid,  upon  the  ground  of  an  alleged  exemp- 
tion.177 

Under  general  law,  a  tax  collector  who  has  become  le- 
gally liable  to  account  and  pay  to  the  public  treasury  a  tax 
which  he  failed  to  collect  from  the  person  assessed,  and 
who  has  been  accordingly  compelled  to  pay  it,  may  recover 
it  from  the  latter  as  money  paid  to  his  use  under  compul- 
sion of  law.178 

Where  decedent's  executor  destroyed  the  will  and  never 

its  Foster  v.  Ley,  supra;  Bate  v.  Payne,  13  Q.  B.  900;  Hales  v. 
Freeman,  1  Brod.  &  B.  391.  See  In  re  Sammon,  3  Mees.  &  W.  381; 
Greville  v.  Greville,  27  Beav.  596;  Turner  v.  Martin,  7  De  Gex,  M. 
&  G.  429. 

17  4  See  Hunter  v.  Husted,  Busb.  Bq.  141;  Attorney  General  v. 
Allen,  6  Jones,  Eq.  144;  In  re  Boyd's  Estate,  4  Wkly.  Notes  Cas. 
510;  In  re  Forbes'  Estate,  16  Phila.  356;  Montague  v.  State,  54  Md. 
486;   In  re  Vanderbilt's  Estate  (Surr.)  10  N.  Y.  Supp.  239. 

17  5  See,  generally,  In  re  Underbill,  117  N.  Y.  471,  22  N.  E.  1120; 
In  re  Keeeb,  7  N.  Y.  Supp.  331,  affirmed  57  Hun,  588,  11  N.  Y.  Supp. 
2(i.j;  Seibert's  Appeal  (Pa.  Sup.)  6  Atl.  105;  Large  v.  McClain  (Pa. 
Sup.)  7  Atl.  101. 

17  6  See  In  re  Underbill,  supra;   In  re  Keecb,  supra, 

177  Farquharson  v.  Nugent,  6  Dem.  Sur.  296. 

17  8  Ward  v.  Riebardson,  1  Abb.  N.  C.  449. 
(382) 


€h.   7]  SURROGATES,    DISTRICT    ATTORNEYS,   ETC.  §    65 

qualified,  but,  after  the  testator's  death,  obtained  all  the 
personal  property  of  decedent  and  invested  it  in  his  own 
name  in  speculative  property,  and,  when  then  threatened  by 
a  legatee  with  criminal  prosecution,  paid  over  to  such  leg- 
atee the  amount  of  the  legacy  out  of  his  individual  properly, 
no  part  of  which  had  ever  belonged  to  the  testator,  held, 
that  the  legatee  was  not  liable  to  pay  transfer  tax  on  the 
amount  of  her  legacy.179 

Where,  in  a  proceeding  under  the  act,  the  only  proof  be- 
fore the  surrogate  consisted  of  an  affidavit  of  decedent's 
daughter,  sole  legatee  and  executrix,  in  which  she  alleged 
there  were  debts  against  the  estate  consisting  of  prom- 
issory notes  made  by  decedent  for  money  alleged  to  be 
loaned  by  the  daughter  to  him,  held,  that  the  executrix  was 
incompetent,  under  the  New  York  statute  (Code,  §  829), 
to  testify  in  her  own  behalf  in  such  proceeding  as  to  per- 
sonal transactions  with  decedent180 

§  65.     Compromises    between  Public   Officers,  Ex- 
ecutors, and  Legatees. 

Under  a  recent  statute  in  New  York  181  the  comptroller  of 
the  state  is  authorized,  with  the  approval  of  the  attorney 
general  and  a  justice  of  the  supreme  court  of  the  judicial 
district  in  which  the  former  owner  resided,  to  compromise 
and  settle  the  amount  of  such  tax  in  any  case  where  contro- 
versies have  arisen  or  may  arise  as  to  the  relationship  of 
the  beneficiaries  to  the  former  owner  thereof. 

The  English  law  is  broader.  The  tax  may  be  compounded 
with  the  government,  where  the  succession  is  of  such  a  na- 
ture, or  so  disposed  or  circumstanced,  that  the  value  thereof 

179  in  re  Weed's  Estate  (1894)  10  Misc.  Rep.  628,  32  N.  Y.  Supp.  777. 
iso  in  re  Mann,  11  N.  Y.  Law  J.  10S2.     See  In  re  Hunt,  12  N.  Y. 
Law  J.  642. 
isi  Laws  1895,  c.  378,  amending  Laws  1892,  c.  399,  §  15. 

(383) 


§    65  SURROGATES,  DISTRICT    ATTORNEYS,  ETC.  [Ch.   7 

shall  not  be  fairly  ascertainable  under  the  act,  or  where, 
from  the  complication  of  circumstances  affecting  the  value, 
assessment,  or  recovery  of  duty,  it  is  deemed  expedient  to 
compound,  etc.182 

Where  money  is  received  by  claimants  under  a  deceased 
person's  will,  by  reason  of  a  compromise  contract  between 
them  and  the  executors,  sanctioned  by  a  court  having  juris- 
diction, the  money  so  received  does  not  fall  within  the  cate- 
gory of  legacies  and  distributive  shares  in  intestate  estates 
which  are  subject  to  federal  revenue  taxes.183 

But,  under  the  English  statute,  where  the  testator  direct- 
ed a  certain  estate  to  be  sold,  and  the  proceeds  to  be  divided 
between  his  two  sons,  but  they  preferred  to  take  the  prop- 
erty themselves  under  an  amicable  arrangement,  the  duty 
was  imposed  upon  the  value  of  the  property,  although  the 
division  of  the  estate  was  not  in  strict  pursuance  of  the 
decedent's  will.184 

The  tax  is  not  payable  on  a  sum  of  money  which  the 
legatees,  who  were  all  collaterals,  authorized  the  executor 
to  pay  to  a  disinherited  son  of  the  testator,  in  pursuance  of 
a  compromise  whereby  the  son's  caveat  is  withdrawn  and 
the  will  admitted  to  probate.185 

Hanna,  P.  J.,  said:  "The  question  now  arises  whether 
the  legatees  are  liable,  not  only  to  the  collateral  tax  upon 
the  balance  of  their  legacies,  but  also  to  that  upon  the 
amount  they  agreed  to  pay  caveator  in  compromise  and  set- 
tlement.    We  have  reached  the  conclusion  that  under  the 

182  16  &  17  Vict.  c.  51,  §  39. 

183  page  v.  Rives,  1  Hughes,  297,  Fed.  Cas.  No.  10,iJGG.  But  see 
Brune  v.  Smith,  13  Int.  Rev.  Rec.  54,  Fed.  Cas.  No.  2,053. 

184  Attorney  General  v.  Holford,  1  Price,  426;  Ex  parte  Sitwell, 
59  Law  T.  539. 

185  in  re  Pepper's  Estate  (Commonwealth's  Appeal,  1894)  159  Pa. 
St.  509,  28  Atl.  353;  50  Leg.  Int.  284,  13  Pa.  Co.  Ct.  R.  517;  2  Pa. 
Dist.  R.  211. 

(384) 


Ch.  7]  SURROGATES,  DISTRICT    ATTORNEYS,  ETC.  §   65 

most  favorable  construction  of  the  act,  so  far  as  respects  the 
contention  on  behalf  of  the  commonwealth,  they  are  not  so 
liable,  and  for  the  reason  that  the  amount  paid  the  caveator 
was  never  received  by  them  as  legatees,  and,  under  the  act, 
it  is  only  so  much  of  the  estate  which  actually  passes  to 
them  by  virtue  of  the  will  that  is  liable  to  the  tax.  It  will 
readily  be  seen  if  the  contest  instituted  by  the  caveatoi- 
had  been  successful  he  would  be  entitled,  under  the  in- 
testate law,  to  the  entire  estate,  and  freed  from  the  tax. 
But  instead  of  further' litigation  he  accepted  a  portion  of 
the  estate,  relinquished  his  claim  to  the  balance,  and  thus, 
of  course,  reduced  the  amount  passing  to  the  legatees;  and 
in  fact,  to  the  extent  of  the  amount  he  recovered  the  will 
is  a  nullity." 

The  tax  cannot  be  imposed  upon  moneys  paid  to  extin- 
guish the  title  of  persons  claiming  adversely  to  decedent, 
or  upon  property  surrendered  by  way  of  compromise  to  per- 
sons so  claiming.  So  held  where  testatrix  devised  her  es- 
tate to  a  friend,  who  died  pending  a  contest  over  the  same. 
The  heirs  of  the  devisee  compromised  with  the  contestants 
and  surrendered  a  portion  of  the  estate  to  them,  which  was 
held  not  liable  to  taxation.186 

Testator  bequeathed  all  his  interest  in  a  limited  partner- 
ship association  to  his  brothers.  His  widow  elected  to  take 
against  his  will,  whereupon  the  executors  and  legatees  paid 
to  her  a  certain  sum  in  full  of  all  her  claims  against  the 
estate.  It  was  held  that  this  did  not  affect  the  right  of  the 
state  to  tax  the  full  value  of  the  deceased  partner's  inter- 
est.187 

186  in  re  Kerr's  Estate  (Commonwealth's  Appeal,  1894)  159  Pa.  St. 
512,  28  Atl.  354;  13  Pa.  Co.  Ct.  R.  431;  50  Leg.  Int.  222. 

187  in  re  Small's  Estate  (Commonwealth's  Appeal,  1892)  151  Pa. 
St.  1,  25  Atl.  23. 

LAW  INHER. — 25  (385) 


§   66  REMEDY    AND    PRACTICE.  £Ch.  8 

CHAPTEE   VIII. 

REMEDY  AND  PRACTICE. 

8    66.  Nature  of  Remedy  and  Actions  and  Proceedings  Thereunda" 

67.  Lien  of  the  Tax,  and  Its  Effect— Statute  of  Limitations. 

68.  Interest  and  Penalties  for  Nonpayment  of  Tax. 

69.  Retroactive,  Amendatory,  and  Repealing  Statutes. 

§  66.     Nature  of  Remedy  and  Actions  and  Proceed- 
ings Thereunder.1 

It  becomes  important,  under  statutes  imposing  collateral 
inheritance,  legacy,  and  succession  taxes,  to  determine  not 
only  the  proper  remedy  and  practice  to  be  pursued  in  pro- 
ceedings to  enforce  the  liability  of  person  or  property  to  the 
tax,  but  also  the  rights  and  obligations  of  different  parties 
to  the  proceeding,  or  who  are  liable  to  be  affected  thereby. 
Some  of  the  questions  upon  this  subject  have  received  par- 
tial consideration  in  the  preceding  chapter. 

Where  the  proceeding  to  collect  a  tax  is  of  a  statutory 
nature,  the  remedy  pointed  out  by  the  statute  is  generally 
exclusive,  and  must  be  strictly  followed,2  but  in  the  absence 

i  For  forms  and  practice  under  New  York  statute,  see  Appendix; 
In  re  Astor,  6  Dem.  Sur.  402,  419,  2  Lawy.  Rep.  Ann.  825,  note;  19 
Abb.  N.  C.  234,  note. 

2  See  U.  S.  v.  Pennsylvania  Co.,  27  Fed.  540;  U.  S.  v.  Trucks' 
Adm'r,  Id.  541;  In  re  McPherson,  104  N.  Y.  323,  324,  10  N.  E.  685; 
In  re  Wolfe,  137  N.  Y.  205,  33  N.  E.  156;  Weston  v.  Goodrich  (Sup.) 
33  N.  Y.  Supp.  3S2;  In  re  Hall's  Estate  (Sup.)  7  N.  Y.  Supp.  595;  In 
re  Howard,  54  Hun,  305,  7  N.  Y.  Supp.  594;  Anderson  v.  Anderson, 
112  N.  Y.  104,  113,  19  N.  E.  427;  Central  Trust  Co.  v.  New  York 
City  &  N.  R.  Co.,  47  Hun,  587;  Id..  110  N.  Y.  250,  18  N.  E.  92;  In  re 
New  York,  L.  E.  &  W.  R.  Co.,  110  N.  Y.  374,  18  N.  E.  120.  When  a 
statute  gives  a  new  power,  and  at  the  same  time  provides  a  means 
for  enforcing  it,  those  who  claim  the  power  can  execute  it  in  no  other 
(386) 


Ch.   8]  REMEDY    AND    PRACTICE.  §    66 

of  any  designated  method  of  procedure  in  the  statute,  it 
seems  that  the  ordinary  or  common-law  methods  may  be 
pursued.3 

Under  general  tax  laws,  where  an  assessment  is  merely 
erroneous,  and  the  payment  of  the  tax  levied  thereon  has 
not  been  compulsory,  the  remedy  by  certiorari  to  correct  the 
assessment  designated  by  statute  is  exclusive.  Where,  how- 
ever, the  assessment  is  illegal  and  void,  this  remedy  is  not 
exclusive,  and  an  action  at  law  may  be  maintained  to  re- 
cover any  tax  paid  under  compulsion  upon  such  void  and 
illegal  assessment.4 

The  claim  of  the  state  for  taxes  is  not  suspended  until  the 
estate  of  a  deceased  person  is  administered,  or  bound  to 
share  with  that  of  creditors  in  the  distribution  of  the  pro- 
ceeds. The  state  may  enforce  it  to  the  exclusion  of  all 
other  creditors.5 

Where  the  statute  makes  the  tax  due  and  payable  at  de- 
cedent's death,  or  at  any  definite  time,  the  state  is  not  bound 
to  wait  the  final  accounting  of  the  executor.6 

Again,  as  the  collateral  inheritance  or  succession  tax  is  not 
always  imposed  upon  the  entire  estate  of  the  decedent,7 
but  as  a  rule  upon  the  specific  taxable  interest  or  property 
passing  either  by  will  or  intestacy,8  the  proceeding  to  assess 

way.  This  rule  applies  to  all  taxes,  public  and  private.  Andover  & 
M.  Turnpike  Corp.  v.  Gould,  6  Mass.  40,  44. 

3  U.  S.  v.  Trucks'  Adm'r,  supra;  Montague  v.  State,  54  Md.  483;  Tor- 
rey  v.  Willard  (Sup.)  8  N.  Y.  Supp.  392. 

*  United  States  Trust  Go.  v.  Mayor,  etc.,  of  City  of  New  York,  77 
Hun,  1S2,  28  N.  Y.  Supp.  344. 

e  Dunlap  v.  Gallatin  Co.,  15  111.  7;   Hil.  Tax'n,  §  66. 

e  In  re  Vassar,  127  N.  Y.  8,  27  N.  E.  395. 

7  Under  the  laws  of  New  York  and  Pennsylvania,  the  property  tax- 
able is  the  estate  of  the  decedent,  and  not  the  share  of  the  individual 
legatee.  See  In  re  Hoffman's  Estate,  143  N.  Y.  333,  38  N.  E.  311; 
In  re  Hall's  Estate  (Sup.)  34  N.  Y.  Supp.  616.     See  chapter  3,  §  41. 

s  See  chapter  2,  §  9;  chapter  3,  §  41. 

(387) 


§    66  REMEDY    AND    PRACTICE.  [Ch.   8 

and  collect  the  tax,  though,  as  we  have  seen,  frequently  in- 
volving a  personal  liability  upon  the  part  of  the  executor, 
administrator,  trustee,  or  legatee,  is  more  strictly  analogous 
to  an  action  in  rem,  as  being  against  the  taxable  estate  or 
share  to  satisfy  the  tax  out  of  the  specific  property  in  the 
hands  of  the  persons  having  the  custody  or  possession  there- 
of. 

Such  were  the  rulings  under  the  succession  acts  of  con- 
gress, and  it  was  accordingly  held  that  no  personal  liabil- 
ity existed  upon  the  part  of  the  executor  as  such,9  though 
he  would  appear  to  have  been  so  liable  under  the  legacy  act 
of  congress.10 

Hence,  under  the  acts  of  congress  mentioned,  a  common 
law  remedy  to  recover  the  tax  could  not  be  maintained 
against  the  executors,  the  remedy  afforded  by  the  statute 
being  solely  to  enforce  the  lien  1X  against  the  beneficiary 
who  took  the  legacy. 

"The  statute,"  12  says  Butler,  J.,18  "provided  a  specific 
method  for  collecting  the  tax  on  legacies  and  successions. 
The  tax  was  made  a  lien  on  all  the  decedent's  property,  and 
the  administrator  or  executor  directed  to  pay  to  the  col- 
lector. In  case  he  did  not,  the  statute  provided  that  the 
lien  should  be  enforced  by  suit  against  anyone  having 
possession,  and  the  property  be  sold  under  the  judgment. 
There  is  no  provision  for  suit  against  the  executor  or  admin- 
istrator, 'and  while  such  suit  might  be  sustained  for  the 
failure  to  pay  in  the  absence  of  express  provision  for  enfor- 

9  U.  S.  v.  Allen,  9  Ben.  154,  Fed.  Cas.  No.  14,430,  citing  12  Stat.  485, 
§  412;  U.  S.  v.  Trucks,  supra;  U.  S.  v.  Pennsylvania  Co.,  supra;  U.  S. 
v.  Tappan,  10  Ben.  284,  Fed.  Cas.  No.  16,431;  Sohier  v.  Eldridge,  103 
Mass.  345.     Succession  of  Dupuy,  33  La.  Ann.  258. 

io  U.  S.  v.  Tappan,  supra. 

ii  U.  S.  v.  Trucks,  27  Fed.  541;  U.  S.  v.  Pennsylvania  Co.,  Id.  539. 
And  see  Sobier  v.  Eldridge,  supra. 

12  Act  June  30,  1864. 

is  U.  S.  v.  Trucks,  supra. 
(388) 


Ch.   S]  REMEDY    AND    PRACTICE.  §    66 

cing  the  lien  under  existing  circumstances  it  cannot'  The 
direction  is  very  specific.  On  the  administrator's  or  execu- 
tor's failure  to  pay,  it  provides  that  suit  shall  be  brought 
against  the  individual  in  possession  to  enforce  the  lien.  The 
remedy  is  an  ample  one,  and  there  is  nothing  to  support  an 
implication  that  any  other  was  contemplated,  and  no  other 
remedy  can  be  resorted  to."  But  where  there  is  a  personal 
liability  upon  the  executor  or  legatee  and  a  right  in  rem 
against  the  property  is  also  given,  either  remedy  it  would 
seem  may  be  adopted.  Under  the  Louisiana  statute,  where 
the  property  liable  to  the  tax  was  sold  in  partition  and  the 
proceeds  were  in  the  hands  of  the  executor  ready  for  distri- 
bution, it  was  not  necessary  to  bring  direct  proceedings 
against  the  property  sold  to  recover  the  tax,  but  claim  made 
in  the  partition  proceedings  was  sufficient.14 

In  North  Carolina  the  proper  method  of  recovering  the 
tax  is  by  bill  in  equity  in  the  nature  of  an  information  in 
the  name  of  the  attorney  general,15  and  in  Maryland,  in  ad- 
dition to  the  liability  of  the  executor,  the  state  may  main- 
tain an  action  of  assumpsit  to  recover  the  tax  against  a 
legatee  to  whom  the  executor  has  paid  the  legacy  without 
deducting  the  tax  therefrom.16 

Under  the  English  statutes,  however,  a  strict  liability  in 
personam  for  the  payment  of  the  tax  is  imposed  upon  the 

I*  Succession  of  Dupuy,  supra. 

is  Attorney  General  v.  Pierce,  6  Jones,  Eq.  240.  As  to  testing  con- 
stitutionality of  such  statutes  by  injunction,  see  Eyre  v.  Jacob,  14 
Grat.  424;  by  writ  of  prohibition  to  restrain  the  enforcement  of  the 
tax  on  the  ground  that  the  act  is  unconstitutional,  see  Chainbe  v. 
Durfee  (1894)  100  Mich.  112,  58  N.  W.  661.  See,  also,  Mearkle  v. 
Hennepin  Co.  (1S90)  44  Minn.  546,  47  N.  W.  165,  by  mandamus. 
State  v.  Ferris,  9  Ohio  Cir.  Ct.  R.  299,  affirmed  41  N.  E.  579. 

is  Montague  v.  State,  54  Md.  4S3.  See  Torrey  v.  Willard,  55  Hun, 
78,  S  N.  Y.  Supp.  392;  Seibert's  Appeal  (Pa.  Sup.)  6  Atl.  105;  In  re 
Jones,  5  Dem.  Sur.  36. 

(389) 


§    66  REMEDY    AND    PRACTICE.  [Ch.   8 

executor,  administrator,  or  trustee,17  and  where  such  per- 
sons fail  to  pay  the  duty  they  may  be  personally  sued  there- 
for as  upon  a  debt  due  the  crown.18 

So,  under  the  Pennsylvania  statute,  executors,  adminis- 
trators, or  trustees  are,  for  the  purpose  of  the  tax,  deemed 
agents  of  the  state.19  and  the  proceeding  to  collect  the  tax 
is  held  to  be  something  more  than  a  proceeding  in  rem,  as 
the  register  may  by  bill  filed  in  the  orphans'  court  compel 
payment  from  such  personal  representatives  who  have  neg- 
lected to  account  for  the  tax  and  for  the  interest  due  there- 
on.20 

Where  tax  accrues,  and  the  executors  or  parties  in  pos- 
session neglect  to  pay  the  tax  within  a  year  after  decedent's 
death,  it  is  proper  for  the  commonwealth  to  invoke  the  rem- 
edy provided  by  statute,21  and  to  proceed,  by  bill  or  petition 
in  the  orphans'  court,  to  enforce  payment  of  the  tax.22 

Where  the  proper  parties  are  brought  before  it,  the  or- 
phans' court  has  the  jurisdiction  to  compel  parties  liable  to 
thetax  to  furnish  the  register  of  willswith  all  facts  necessary 
for  the  assessment  of  the  tax,  and  to  enforce  its  payment 
when  duly  assessed.23 

So,  under  the  New  York  statute,  the  proceeding  partakes 
both  of  the  nature  of  a  personal  liability  upon  the  part  of 

it  See  chapter  7,  §§  63,  64. 

is  in  re  Sammon,  3  Mees.  &  W.  381;  Bate  v.  Payne,  13  Q.  B.  900; 
In  re  Wilkinson,  1  Cramp.,  M.  &  R.  142;  15  &  16  Vict.  c.  51,  §  44; 
36  Geo.  III.    c.    52,  §  6;  13  &  14  Vict.  c.  97,  §  8. 

is  Seibert's  Appeal  (Pa.   Sup.)  6  Atl.  105. 

20  Chapter  7,  p.  362;  In  re  Cullen's  Estate,  26  Wkly.  Notes  Cas. 
216;  James'  Appeal,  2  Deb.  Co.  Rep.  164;  Bank's  Estate,  5  Pa.  Co. 
Ct.  R.  616. 

si  Laws  Pa.  1887,  §  15. 

22  in  re  Maris'  Estate  (1893)  50  Leg.  Int.  458,  14  Pa.  Co.  Ct.  R.  171, 
and  3  Pa.  Dist.  R.  33. 

23  in  re  Maris'  Estate,  supra. 

(390) 


Ch.  8]  REMEDY    AND    PRACTICE.  §   60 

the  executor24  and  of  an  action  in  rem  against  the  prop- 
erty; and  in  that  state  the  executor  or  administrator  is  held 
personally  liable  for  the  payment  of  the  tax,  where  he  has 
paid  over  the  legacies  without  deduction,  and  for  the  costs 
of  the  proceeding  to  collect  the  tax.25 

Such  executor  or  administrator  is  also  liable  to  contempt 
or  attachment  proceedings  for  the  nonpayment  of  a  tax 
directed  to  be  paid  by  decree  of  the  surrogate.28 

Whether,  in  that  state,  the  county  treasurer  or  comp- 
troller can  maintain  an  action  at  law  directly  against  the 
executor  or  administrator  for  taxes  due,  has  not  been  de- 
termined; 2T  but  it  would  seem  that  the  remedy  which  has 
been  designated  by  the  statute,  to  wit,  through  proceedings 
to  be  begun  by  the  district  attorney  in  the  surrogate's  court, 
would  have  to  be  followed.28 

Under  the  act  of  1892, 29  the  county  treasurer  or  comp- 
troller may  apply  for  the  appointment  of  an  appraiser  to  fix 
the  value  of  the  property;  and,  where  application  is  made 
by  others,  notice  must  be  given  to  the  county  treasurer.30 

In  England,  where  the  executor  or  administrator  has 
been  compelled  to  pay  the  tax,  he  is  afforded  a  remedy  over 

24  Laws  1892,  c.  399,  §§  3,  5. 

25  in  re  Clark,  1  Con.  Sur.  431,  5  N.  Y.  Supp.  199;  In  re  Vanderbilt's 
Estate  (Suit.)  10  N.  Y.  Supp.  239;  In  re  Minturn's  Estate,  3  N.  Y. 
Law  J.  S04. 

26  in  re  Prout,  3  N.  Y.  Supp.  S31;  Code  Civ.  Proc.  2555;  In  re 
McPherson,  104  N.  Y.  323,  10  N.  E.  685;  In  re  Gilman's  Estate,  G 
Dem.  Sur.  35S;  In  re  Pelton's  Estate,  10  N.  Y.  Supp.  642;  In  re 
Cockey,  8  N.  Y.  Law  J.  1507. 

27  In  re  Jones,  5  Dem.  Sur.  36;  Torrey  v.  Willard,  S  N.  Y.  Supp. 
392. 

2  8  But  see  Montague  v.  State,  supra. 

29  Appendix,  I.  e,  Laws  1892,  c.  399,  §  11. 

so  As  to  whether  in  proceedings  by  the  district  attorney  he  ruay 
be  compelled  to  elect  to  hold  the  executor  personally  or  the  legatee, 
see  In  re  Cockey,  8  N.  Y.  Law  J.  p.  1507. 

(391) 


§   G6  REMEDY    AND    PRACTICE.  [Ch.   8 

against  the  legatee  upon  whose  share  the  tax  has  been  paid, 
as  for  money  paid  to  the  tatter's  use;31  and  the  same  rem- 
edy would  seem  to  be  given  such  personal  representatives 
under  our  statutes,  or  at  least  at  common  law,  as  for  money 
paid  for  the  legatee's  benefit  under  compulsion  of  law.32 

Under  none  of  the  statutes,  however,  is  there  any  per- 
sonal liability  on  the  part  of  the  legatee  or  devisee,  as  such, 
to  pay  the  tax,  unless  he  actually  or  constructively  accepts 
or  receives  the  legacy  or  share,  or  any  part  thereof,  in  which 
event  it  is  taken  cum  onere,  subject  to  the  payment  of  the 
duty.33  In  Louisiana  the  tax  is  held  not  to  be  a  debt  due 
by  the  succession  in  the  state,  but  by  the  foreign  heirs; 
hence  it  was  necessary  to  bring  suit  directly  against  such 
heirs.34 

But  it  will  be  a  justification  and  a  defense,  on  the  part 
of  the  legatee,  for  refusing  to  pay,  that  he  has  absolutely 
renounced  and  refused  to  accept  the  inheritance  or  leg- 
acy.35 

The  fact  that  the  legacy  has  not  been  paid,  or  its  payment 
demanded,  does  not  defeat  the  tax,  where  there  is  no  proof 
that  the  legacy  has  been  renounced.36 

si  Foster  v.  Ley,  2  B'mg.  N.  C.  276.  See,  also,  Hales  v.  Freeman, 
1  Brod.  &  B.  391;  In  re  Sammon,  3  Mees.  &  W.  3S1;  Bate  v.  Payne, 
13  Q.  B.  900;  In  re  Wilkinson,  1  Cronip.,  M.  &  R.  142;  Greville  v. 
Greville,  27  Beav.  596. 

32  See  chapter  7,  §  64;    chapter  3,  §  41. 

33  Attorney  General  v.  Munby,  3  Hurl.  &  N.  826;  Foster  v.  Ley, 
eupra;  In  re  McPherson,  104  N.  Y.  323,  10  N.  E.  685;  In  re  Howe,  112 
N.  Y.  103.  19  N.  E.  513;  In  re  Le  Fever,  5  Dem.  Sur.  185;  In  re 
Walsh,  N.  Y.  Law  J.  July  28,  1888;  In  re  Vanderbilt's  Estate, 
supra;  chapter  7,  §§  63,  64;  Owings  v.  State,  22  Md.  116. 

34  Succession  of  Deyraud,  9  Rob.  (La.)  357;  Succession  of  Dupuy, 
33  La.  Ann.  258. 

3  5  In  re  McPherson,  supra;  In  re  Le  Fever,  supra;  Attorney  Gen- 
eral v.  Munby,  supra, 
ae  in  re  Raymond,  12  N.  Y.  Law  J.  453. 
(392) 


Ch.  8]  REMEDY    AND    PRACTICE.  §    66 

A  constructive  possession   by  the  legatee   is,   however, 

sufficient  to  make  him  liable,  as  where  he  was  awarded  a 
certain  sum  in  partition  proceedings,  and  exercised  acts 
of  ownership  over  it.37  And,  where  the  devisee  taking  the 
property  is  liable  to  the  succession  tax,  such  liability  is  not 
defeated  by  the  fact  that  in  partition  proceedings  he  has 
only  had  personal  property  assigned  to  him.38 

A  release  or  conveyance  by  a  devisee  who  is  a  collateral 
heir,  and  taxable  to  one  whose  right  of  succession  is  not 
subject  to  the  tax  after  the  devise  has  once  been  vested, 
will  not  deprive  the  commonwealth  of  the  tax.39 

So  an  alien  devisee  of  land,  who  receives  its  value  in  such 
proceedings,  is  estopped  from  setting  up,  as  against  a  de- 
mand for  a  succession  tax  thereon,  the  fact  that,  by  the  law 
of  the  state  where  the  land  is  situate,  the  devise  to  an  alien 
is  null  and  void.40 

But  there  is  no  personal  liability  upon  a  purchaser  of 
land  at  partition  sale  to  pay  the  tax,  where  the  tax  is  a  lien 
upon  the  land  itself,41  and  the  statute  does  not  authorize 
a  sheriff  who  has  sold  land  and  collected  the  proceeds  under 
the  order  of  the  court  in  such  suit  to  pay  the  succession 
tax  upon  the  descent  of  such  lands.42  Where,  however,  the 
purchaser  of  land  upon  which  there  is  a  tax  due  the  state  is 
compelled  to  pay  the  same  to  save  the  land  from  sale  under 

37  in  re  Walsh's  Estate,  supra. 

ss  Scholey  v.  Rew,  23  Wall.  331;  In  re  Walsh's  Estate,  supra; 
Brune  v.  Smith,  13  Int  Rev.  Rec.  54,  Fed.  Cas.  No.  2,053.  See  U.  S. 
v.  Watts,  1  Bond,  581,  Fed.  Cas.  No.  16,653;  Page  v.  Rives,  1  Hughes, 
297,  Fed.  Cas.  No.  10,666. 

39  in  re  Frank's  Estate  (1891)  8  Law  Rev.  3S4,  28  Wkly.  Notes  Cas. 
323,  and  48  Leg.  Int.  232;  9  Pa.  Co.  Ct.  R.  662. 

40  Scholey  v.  Rew,  supra. 

4i  See  section  67,  post,  and  Wilhelmi  v.  Wade,  65  Mo.  39;    Sohier 
T.  Eldridge,  103  Mass.  319. 
42  Wilhelmi  v.  Wade,  supra. 

(393) 


§    66  REMEDY    AND    PRACTICE.  [Ch.   8 

execution  for  the  tax,  he  may  recover  the  amount  from  his 
vendors  upon  an  implied  covenant  contained  in  the  words 
"grant,  bargain,  and  sell,"  in  the  deed.43 

In  New  York,  it  seems,  a  certified  receipt  of  the  county 
treasurer  or  comptroller  of  the  county  where  jurisdiction 
was  first  acquired  will  be  full  protection  to  any  subsequent 
purchaser  of  such  land,  as  against  any  claim  for  the  tax.44 

Where  real  estate  passes  to  a  person  who  is  subject  to  the 
tax,  the  order  of  assessment  must  describe  the  same  so  that 
in  issuing  receipts  the  comptroller  or  county  treasurer  may 
designate  on  what  real  property  said  tax  has  been  paid.45 

The  initial  steps  which  the  statute  requires  the  surrogate 
to  take  are  those  of  taxing  officers,  and  not  of  judges.  He 
appoints  an  appraiser  to  appraise  the  cash  value  of  the 
property.  Upon  the  coming  in  of  the  report  he  may  enter 
an  order  determining  the  cash  value  of  the  estate.  The 
order  may  be  based  upon  the  report,  or  upon  any  other  proof 
before  him,  and  this  he  does  "as  of  course."  But  the  party 
aggrieved  may  take  an  appeal  from  the  order  thus  made 
to  the  surrogate  and  then,  for  the  first  time,  the  procedure 
takes  on  a  judicial  character.46 

The  surrogate's  court  in  the  latter  state  has  exclusive 
original  jurisdiction  to  hear  and  determine  all  questions 
arising  in  proceedings  to  collect  the  tax.47 

43  Large  v.  McClain  (Pa.  Sup.)  7  Atl.  101;  In  re  Boyd's  Estate,  4 
Wkly.  Notes  Cas.  510.  See  Kilderbee  v.  Ambrose,  28  Eug.  Law  & 
Eq.  500. 

4*  In  re  Keenan  (Surr.)  5  N.  Y.  Supp.  200.  See  In  re  Astor,  6  Dern. 
Sur.  402. 

■is  Laws  1887,  c.  713,  §  23;  Laws  1892,  c.  399,  §  16;  In  re  Jones,  7 
N.  Y.  Law  J.  578. 

46  Weston  v.  Goodrich  (1895)  8G  Hun,  194,  33  N.  Y.  Supp.  382. 

47  See  chapter  7,  §  62,  pp.  350,  352;  In  re  McPherson,  104  N.  Y.  323, 
324, 10  N.  E.  685;  In  re  Keenan,  supra;  Anderson  v.  Anderson,  112  N. 
Y.  104, 113, 19  N.  E.  427;  Central  Trust  Co.  v.  New  York  City  &  N.  R. 

(394) 


Ch.   8]  REMEDY    AND    PRACTICE.  §    6t> 

And,  the  jurisdiction  of  the  surrogate  being  exclusive,  the 
supreme  court  of  the  state  has  no  power,  under  these  stat- 
utes, in  an  equity  action,  to  adjudicate  in  the  first  instance 
upon  the  liability  of  an  estate  to  the  inheritance  tax.  Nor 
has  a  justice  of  said  court  any  power  to  act  as  an  assessor 
under  said  acts.48 

Under  a  recent  statute  passed  in  1895,49  a  limited  power 
is  now  conferred  upon  justices  of  the  supreme  court  to  ap- 
point an  appraiser  upon  the  application  of  the  state  comp- 
troller, where  the  latter  believes  that  a  prior  appraisement 
or  determination  in  the  surrogate's  court  was  fraudulent, 
collusive,  or  erroneous.  The  application  must  be  made  to 
the  justice  within  two  years  after  the  order  of  the  surrogate 
is  entered. 

The  proceeding  to  compel  payment  of  the  tax  is  com- 
menced  by  petition  filed  by  and  in  the  name  of  the  district 
attorney — who  is  required  to  prosecute  the  proceeding — in 
the  surrogate's  court  of  the  county  having  jurisdiction  over 
the  estate,50  and  it  seems  that  the  only  method  by  which  the 

Co.,  47  Hun,  587;  Id.,  110  N.  Y.  250,  18  N.  E.  92;  In  re  New  York, 
L.  E.  &  W.  R.  Co.,  110  N.  Y.  374,  18  N.  E.  120;  U.  S.  v.  Trucks, 
27  Fed.  541;  In  re  Wolfe,  137  N.  Y.  205,  33  N.  E.  156;  In  re  Ullmann, 
137  N.  Y.  406,  33  N.  E.  480;  Weston  v.  Goodrich,  86  Hun,  194,  33  N. 
Y.  Supp.  3S2. 

4  s  Weston  v.  Goodrich  (1895)  86  Hun,  194,  33  N.  Y.  Supp.  382,  citing 
In  re  Wolfe,  137  N.  Y.  205,  33  N.  E.  156;  In  re  Ullmann,  137  N.  Y. 
406,  33  N.  E.  4S0. 

49  See  Appendix,  I.  e,  Laws  1895,  c.  556,  amending  section  13,  Laws 
1S92,  c.  399. 

bo  See  chapter  7,  p.  357;  In  re  Vanderbilt's  Estate  (Suirr.)  10  N.  Y. 
Supp.  239;  In  re  Arnett,  49  Hun,  599,  601,  2  N.  Y.  Supp.  42S;  In  re 
Farley's  Estate,  15  N.  Y.  St.  Rep.  727.  For  forms  under  the  New 
York  statute,  see  Appendix,  I.;  In  re  Aster's  Estate  (Suit.)  2  N.  Y. 
Supp.  630;  2  Lawy.  Rep.  Ann.  825,  note.  For  a  digest  of  cases  under 
the  statute,  by  Theo.  Connoly,  Esq.,  see  2  N.  Y.  Law  J.  (Dec.  24, 
1S89)  1760. 

(395) 


§    66  REMEDY    AND    PRACTICE.  [Ch.   8 

liability  of  the  executor  or  others  to  pay  the  tax  can  be  de- 
termined is  by  such  a  proceeding.51 

The  proceeding,  under  statutory  requirement,  is  based 
upon  a  notice  in  writing  from  the  county  treasurer  or  comp- 
troller to  the  district  attorney,  showing  a  "refusal  or  neg- 
lect" to  pay  the  tax  upon  the  part  of  the  parties  liable  there- 
to. If,  upon  receipt  of  such  notice,  the  district  attorney 
shall  have  probable  cause  to  believe  a  tax  to  be  due,  he 
shall  thereupon  initiate  the  proceedings  to  collect  the  tax. 
There  is  nothing  in  the  statute  requiring  previous  demand 
upon  any  of  the  parties  liable  for  payment  of  the  tax  before 
the  proceeding  is  begun.52 

Under  the  Illinois  statute  53  the  proceeding  to  collect  the 
tax  is  somewhat  similar  to  the  New  York  statute;  the  act 
providing  that,  if  it  shall  appear  to  the  county  court  that 
any  tax  accruing  has  not  been  paid  according  to  law,  it 
shall  issue  a  summons,  summoning  the  persons  interested 
in  the  property  liable  to  the  tax  to  appear  before  the  court 
on  a  day  certain,  not  more  than  three  months  after  the 
date  of  such  summons,  to  show  cause  why  said  tax  should 
not  be  paid.  The  process,  practice,  and  pleadings,  and 
the  hearing  and  determination  thereof,  and  the  judgment 
in  said  court  in  such  cases,  shall  be  the  same  as  those  now 
provided,  or  which  may  hereafter  be  provided,  in  probate 
cases  in  the  county  courts  of  the  state.  It  is  further  pro- 
vided 54  that  whenever  the  treasurer  of  any  county  shall 

6i  Cases  supra.  But  see  Frazer  v.  People  (Surr.)  3  N.  Y.  Supp.  134; 
In  re  Astor's  Estate,  supra.     In  re  Wolfe,  and  cases  supra. 

52  See  Appendix,  I.  a,  Laws  1887,  c.  713,  §  17;  In  re  Vanderbilt's 
Estate  (Surr.)  10  N.  Y.  Supp.  239.  Demand  seems  to  have  been  neces- 
sary under  the  federal  statute.  See  U.  S.  v.  Pennsylvania  Co.,  27 
Fed.  539.  What  not  a  refusal  to  pay  tax  as  regards  costs  of  district 
attorney,  see  Frazer  t.  People,  supra, 

63  Appendix,  X.,  §§  14,  15. 

6  4  Appendix,  X.  §  15. 
(396) 


Ch.   8]  REMEDY    AND    PRACTICE.  §   66 

have  reason  to  believe  that  any  tax  is  due  and  unpaid,  after 
the  refusal  or  neglect  of  the  person  interested  in  the  prop- 
erty liable  to  pay  said  tax  to  pay  the  same,  he  shall  notify 
the  state's  attorney  of  the  proper  county,  in  writing,  of  such 
refusal  to  pay  said  tax,  and  the  state's  attorney  so  notified, 
if  he  has  proper  cause  to  believe  a  tax  is  due  and  unpaid, 
shall  prosecute  the  proceeding  in  the  county  court 55  for  the 
enforcement  and  collection  of  such  tax. 

No  demand  is  necessary  where  a  statute  provides  that 
proceedings  may  be  commenced  upon  a  "neglect"  or  "re- 
fusal" to  pay.56 

While  the  district  attorney  is  a  proper  party  upon  the 
final  accounting  of  an  executor,  as  being  interested  in  the 
estate  for  the  purpose  of  the  tax,  yet,  in  order  to  compel 
payment,  he  must  institute  the  formal  proceedings  required 
by  the  statute,  citing  all  necessary  parties  thereto.67 

The  executor,  administrator,  or  trustee,  or  any  other 
party  interested  B8  in  the  estate  liable  to  the  tax,  may  also, 
under  the  act,  institute  proceedings  to  have  the  property 
assessed  or  valued  for  the  purpose  of  ascertaining  the 
amount  of  the  tax  due.59  The  proceeding,  however,  for  an 
appraiser,  will  be  dismissed  where  no  facts  are  stated,  but 
only  a  conclusion  of  law  that  the  estate  is  not  liable.60 

But  it  will  be  observed  that  this  proceeding  is  of  an  en- 
tirely different  nature  from  the  one  directed  to  be  begun 
by  the  district  attorney,   which  is,   primarily,  to   compel 

6  5  See  Appendix,  X.  §  14. 

ee  McLean  v.  Brown,  5  N.  Y.  Law  J.  407. 

5?  Cases  supra,  and  In  re  Arnett,  49  Hun,  599-601,  2  N.  Y.  Supp. 
428;  In  re  Vanderbilt's  Estate,  supra.  See  In  re  Farley's  Estate,  15 
N.  Y.  St.  Rep.  727. 

5  8  As  to  meaning  of  this  phrase,  see  In  re  Wagner's  Estate,  119  N. 
Y.  32,  23  N.  E.  200;  In  re  Arnett,  supra. 

58  Appendix,  I.  e,  §  13;  Frazer  v.  People,  supra.  See  In  re  Farley, 
supra. 

so  In  re  Cockey,  S  N.  Y.  Law  J.  1507. 

(397) 


§   66  REMEDY    AND    PRACTICE.  [Ch.   8 

payment  of  the  tax  from  parties  who  have  refused  or  neg- 
lected to  pay  the  same. 

It  was  held,  under  the  act  of  1887, 61  that  the  state  was 
bound  by  a  decree  made  in  a  proceeding  begun  by  the  ex- 
ecutor under  this  provision  of  the  statute,  where  no  previ- 
ous notice  of  the  proceeding  was  given  to  the  county  treas- 
urer or  comptroller,  the  court  holding  that  under  the  stat- 
ute no  such  notice  was  either  required  or  necessary;  that 
the  surrogate,  in  declaring  an  exemption  from  taxation, 
acted  as  a  state  assessor;  and  that  his  decree  exempting 
the  legatees  was  binding  upon  the  state,  without  notice  to 
any  other  state  official.62  Now,  however,  the  act  of  1892  * 
requires  the  county  treasurer  or  comptroller  to  be  notified 
in  the  first  instance  of  the  proceeding  for  the  appointment 
of  an  appraiser  under  the  act.83 

Though  an  estate  subject  to  the  tax  had  been  appraised, 
and  the  surrogate  had  assessed  the  tax  due  thereon,  and  it 
had  been  paid,  such  proceeding  does  not  bar  a  further  pro- 
ceeding to  enforce  the  payment  of  the  tax  on  property  of 
the  same  estate  not  appraised  in  the  former  proceeding  be- 
cause withheld  from  the  notice  of  the  appraiser.64 

Under  the  Pennsylvania  statute,65  the  tax  is  imposed  only 
on,  "estates     *     *     *     passing  from  any  person  who  may 

61  Appendix,  I.  a. 

62  in  re  Wolfe,  137  N.  Y.  205,  33  N.  E.  156,  distinguished  in  in  Re 
Smith's  Estate  (Suit.)  23  N.  Y.  Supp.  762.  See  In  re  Astor,  6  Dem. 
Sur.  402.  As  to  when  the  surrogate's  decree  is  deemed  conclusive, 
see  Code  Civ.  Proc.  N.  Y.  §  2473. 

*  Chapter  399,  §§  11,  12. 

63  See  In  re  Vanderbilt's  Estate,  supra;  In  re  McPherson,  104  N. 
Y.  323,  10  N.  E.  685;  Crane  v.  Mayor,  etc.,  13  N.  Y.  St.  Rep.  342; 
Lockwood  v.  Carr,  4  Dem.  Sur.  515;  Davis  v.  Crandall,  101  N.  Y. 
311,  4  N.  E.  721;   Succession  of  Dupuy,  33  La.  Ann.  261. 

e*  In  re  Smith's  Estate  (1893;    Suit.)  23  N.  Y.  Supp.  762,  distin- 
guishing In  re  Wolfe,  137  N.  Y.  205,  33  N.  E.  .156. 
es  Act  May  6,  1887,  p.  79. 
(398) 


Ch.   8]  REMEDY    AND    PRACTICE.  §    GO 

die  seized  or  possessed  of  such  estates."  It  is  upon  the 
state  to  show,  not  only  that  the  persons  against  whom  it 
claims  taxes  are  not  of  the  exempted  classes,  but  that  the 
estate  passed  from  one  who  actually  died  seised  or  pos- 
sessed of  the  same.  Therefore,  where  property  was  set- 
tled b}'  will  to  one  in  trust  for  life,  and  upon  the  determina- 
tion of  the  life  estate  to  the  "right  heirs"  of  the  testator, 
and  upon  the  death  of  the  life  tenant  in  trust  it  becomes 
established  that  the  life  tenant  was  entitled  as  the  "right 
heir,"  the  estate  was  awarded  to  the  distributees  under  the 
will  of  the  deceased  life  tenant,  free  of  the  tax  upon  her 
estate.60 

Ex  parte  orders  or  decrees  relieving  persons  from  the  tax 
are  not,  therefore,  binding  upon  the  county  treasurer  or 
comptroller,  and  are  no  bar  to  proceedings  begun  by  them  to 
collect  the  tax.67  As  a  general  rule,  it  is  doubtful  wheth- 
er anything  will  bar  the  claim  of  the  state,  excepting  pay- 
ment of  the  tax,  or  a  decree  of  a  competent  court  having  ju- 
risdiction in  the  premises.  Even  a  receipt  for  payment  of  the 
tax  will  not  act  as  an  estoppel  against  the  state  to  recover 
a  tax  or  interest  due,  where  the  receipt  was  simply  for  the 
amount  of  tax  fixed  by  the  court,  and  does  not  express  the 
idea  that  the  money  was  received  in  satisfaction,  discharge, 
or  payment  of  the  amount  of  the  tax  claimed  by  the  state.68 
And  a  receipt  is  no  bar  to  proceedings  to  collect  taxes  which, 
by  mistake  or  fraud,  were  omitted  to  be  paid.69 

ee  in  re  Swann's  Estate,  147  Pa.  St.  383,  23  Atl.  599. 

6  7  id.;  In  re  Lenox's  Estate  (Suit.)  9  N.  Y.  Supp.  895;  In  re  Hoch- 
ster,  cited  Id.  896. 

es  Commonwealth's  Appeal  (Fagely's  Estate)  128  Pa.  St.  613,  18 
Atl.  3S6.  See  In  re  Vanderbilt's  Estate  (Suit.)  10  N.  Y.  Supp.  239; 
In  re  Astor,  supra;  Commonwealth's  Appeal  (Bittinger's  Estate)  129 
Pa.  St.  338,  18  Atl.  132;  Com.  v.  Freedley,  21  Pa.  St.  33;  In  re  Brew- 
er's Estate,  16  Pittsb.  Leg.  J.  (N.  S.)  114;  15  Pittsb.  Leg.  J.  (N.  S.1  435; 
Smith's  Estate,  supra. 

69  Id.  and  In  re  Brewer's  Estate,  supra.   As  to  effect  of  receipt  upon 

(3i)U) 


§    66  REMEDY    AND    PRACTICE.  [Ch.   8 

In  fact,  whether  the  proceeding  is  one  begun  by  the  state 
through  its  designated  officials,  or  by  the  persons  interested 
in  the  estate,  all  parties  under  the  statute,  interested  in  the 
property,  as  heirs,  legatees,  or  public  officials,  are  entitled 
to  notice  70  and  hearing,  as  without  these  the  proceeding, 
as  to  them,  will  be  void.71  As  we  have  seen  under  the  act 
of  1892,72  the  county  treasurer  or  comptroller  is  also  enti- 
tled to  be  notified  of  the  proceeding. 

The  rights  of  the  parties  to  this  proceeding  under  the  New 
York  statute  have  been  aptly  described  by  Earl,  J.,  in  Re  Mc- 
Pherson : 7  3  "Upon  return  of  the  citation,  the  person  cited  may 
allege  any  reason  whatever  which  shows  that  he  ought  not 
to  pay  the  tax.  He  may  answer  that  he  has  not  had  an  op- 
portunity to  be  heard  upon  the  appraisal,  and  that,  therefore, 
the  tax,  as  to  him,  is  void.  He  may  show  any  error  affect- 
ing the  validity  of  the  tax,  and  that  he  has  never  received, 
and  never  will  receive,  the  inheritance  or  legacy;  and  it 
would  be  a  justification  for  refusing  to  pay,  that  he  had  ab- 
solutely renounced  and  refused  to  accept  or  receive  the  in- 
heritance or  legacy.  *  *  *  When  the  section  provides 
that  the  surrogate  shall  designate  by  order  to  whom  the  no- 
tice is  to  be  given,  it  is  necessarily  implied  that  he  shall  des- 
ignate all  persons  entitled  to  notice.  If  he  should  omit  to 
do  so,  it  would  be  an  error  on  account  of  which  any  tax  im- 
posed upon  the  person  not  notified  or  heard,  would  be  in- 
valid, as  having  been  imposed  without  jurisdiction." 

proceedings  of  the  district  attorney,  where  there  is  property  in  differ- 
ent counties  liable  to  the  tax  see  In  re  Keenan's  Estate  (Surr.)  5  N.  Y. 
Supp.  200. 

70  Orders  appointing  appraisers  should  specify  persons  entitled  to 
notice.  In  re  Astor,  6  Dem.  Sur.  402;  In  re  McPherson,  104  N.  Y. 
322,  10  N.  E.  685. 

~  i  Cases  supra,  and  In  re  Miller's  Estate,  110  N.  Y.  216,  224.  18  N. 
E.  139;   In  re  Arnett,  49  Hun,  602,  2  N.  Y.  Supp.  428. 

72  Appendix,  I.  e,  Laws  1892,  c.  399,  §  11. 

7  3  104  N.  Y.  323,  10  N.  E.  685. 
(400) 


Ch.  8]  REMEDY    AND    PRACTICE.  §    66 

The  doctrine  of  notice  is  one  which  funis  application  when 
it  is  sought  to  tax  the  property  of  the  citizen.  Winn  he  is 
to  be  assessed,  it  is  essential  that  he  shall  be  given  an  op- 
portunity to  be  heard,  to  establish  a  demand  against  him.7* 

And  under  the  act  of  1S92,  where  infants  are  interested  in 
the  estate,  they  are  entitled  to  be  notified  of  the  assessment 
proceeding,  and  to  have  special  guardians  appointed  to  rep- 
resent their  interests.75 

In  a  proceeding,  howrever,  to  vacate  the  assessment  for 
being  without  notice,  it  will  be  presumed,  in  the  absence  of 
proof  to  the  contrary,  that  the  surrogate  gave  the  notice 
required  by  statute.76 

Under  the  statute  it  would  seem  that  the  surrogate  has 
the  power  to  order  a  reference  for  the  purpose  of  determin- 
ing any  doubtful  or  disputed  question  of  fact,  and  he  may 
take  all  necessary  testimony  7T  in  relation  thereto. 

As  to  the  effect  of  his  decree,  it  is  confirmatory  of  the 
rights  of  the  state,  where  made  upon  proper  notice,  and  es- 
tablishes an  additional  right, — that  of  recovery,  by  virtue 
of  itself;78  and  such  decree  cannot  be  vacated,  as  having 
been  made  inadvertently,  upon  a  motion  based  upon  a 
change  in  the  law  effected  by  a  statute  passed  after  the  ren- 
dering of  the  decree,  and  before  payment  of  the  tax.78  An 
order  imposing  the  tax  will  not  be  modified  or  amended  by 
motion,  the  remedy  being  by  appeal.80 

7  4  in  re  Wolfe,  137  N.  Y.  205,  33  N.  E.  15G;  In  re  Cockey,  S  N.  Y. 
Law  J.  1507. 

75  in  re  Lewis,  7  N.  Y.  Law  J.  951,  citing  In  re  McPberson,  104  N. 
Y.  306,  10  N.  E.  685. 

7  6  Estate  of  Miller,  110  X.  Y.  216,  18  N.  E.  139. 

7  7  Code  Civ.  Proc.  §  2546;  see  In  re  Pearsall,  51  Hun,  639.  4  N.  Y. 
Supp.  365;  In  re  Prout's  Estate  (Suit.)  3  X.  Y.  Supp.  831;  In  re 
Astor's  Estate  (Suit.)  2  N.  Y.  Supp.  630;   In  re  McFhersou.  supra. 

7  8  in  re  Miller,  6  Dem.  Sur.  119,  110  X.  Y.  216,  IS  X.  E.  139. 

79  Id.;   see  chapter  3,  §  33. 

so  in  re  Ferrer,  X.  Y.  Law  J.  (Jan.  30,  1S92)  1062. 

LAW  IN  HER. — 26  (1U1) 


§    66  REMEDY    AND    PRACTICE.  [Ch.    8 

Under  these  statutes,  parties  aggrieved  by  the  imposition 
of  the  tax  are  afforded  a  remedy  by  appeal,81  and  the  state 
is  afforded  the  same  remedy  where  it  is  aggrieved  by  any 
error  of  the  court  in  refusing  to  assess  or  impose  the  tax  as 
required  by  law.  Some  of  the  questions  relating  to  appeals 
from  proceedings  before  the  appraiser  have  already  been 
considered.82 

After  the  time  to  appeal  has  expired,  an  order  imposing 
the  tax  will  not  be  amended  or  modified  by  the  surrogate.83 

Upon  appeal  to  the  surrogate  from  an  assessment  of  the 
tax,  security  should  be  given  to  pay  the  tax  and  costs  im- 
posed.84 

Under  the  recent  act  of  1892, 85  it  would  seem  that  any 
successful  party  to  the  proceeding  is  entitled  to  costs,  the 
same  as  in  other  actions. s6 

si  In  re  McPherson,  104  N.  Y.  323,  10  N.  E.  G85.  As  to  power  of 
United  States  supreme  court  to  review  decisions  of  state  court  under 
these  statutes,  see  Carpenter  v.  Penn,  17  How.  456,  4G2. 

82  Chapter  5,  §  55.  As  to  whether,  in  New  York,  under  these  pro- 
ceedings, the  surrogate  can  be  reviewed  on  appeal  without  findings 
of  fact  and  conclusions  of  law  has  not  been  determined.  The  pro- 
ceedings are  of  a  summary  nature,  the  appraiser,  in  ascertaining 
the  value  of  the  property,  receives  all  proof  bearing  upon  the  subject 
(see  chapter  5,  p.  209),  nnd  as  additional  proof  will  be  received  by  the 
surrogate  upon  motion  to  confirm  the  appraiser's  report,  findings 
would  seem  to  be  wholly  foreign  to  a  proceeding  of  this  nature. 
Consult,  however,  In  re  Fall's  Estate  (Sup.)  10  N.  Y.  Supp.  41,  and 
cases  cited  Code  Civ.  Proc.  N.  Y.  §  2545. 

83  in  re  Ferrer,  N.  Y.  Law  J.  (Jan.  30,  1892)  1062. 

s*  Appendix,  I.  e,  Laws  N.  Y.  1892,  c.  399,  §  13;  In  re  Phelp's 
Estate,  N.  Y.  Law  J.  Jan.  23,  1890.  As  to  costs  of  district  attorney 
under  the  statute  of  1S87,  see  In  re  Stucke,  N.  Y.  Daily  Reg.  April 
25,  1889;  Frazer  v.  People  (Surr.)  3  N.  Y.  Supp.  134;  In  re  Min- 
turn's  Estate,  3  N.  Y.  Law  J.  804.  As  to  costs  of  district  attorney 
under  the  act  of  1S92,  c.  399,  §  15,  see  In  re  McCarthy's  Estate 
(Surr.)  25  N.  Y.  Supp.  987. 

so  Chapter  399,  §  15. 

so  in  re  Hoffman,  N.  Y.  Law  J.  Nov.  17,  1893. 
(402) 


Ch.   8]  REMEDY    AND    PRACTICE.  §    6G 

In  Pennsylvania,  where  the  tax  is  imposed  upon  real  es- 
tate, the  heir,  and  not  the  administrator,  is  given  the  right 
of  appeal  from  the  appraiser's  report;  but,  upon  questions 
relating  to  the  appraisement  ST  of  the  personalty,  the  ad- 
ministrator only  has  the  right  of  appeal, ss  and,  unless  the 
report  of  the  appraiser  shows  prima  facie  error,  no  appeal 
can  be  taken  therefrom.89 

The  general  rule  is  that  a  tax  voluntarily  paid  under  a 
mistake  of  law  cannot  be  recovered  back.90 

Many  of  the  statutes  imposing  this  tax  provide  for  resti- 
tution where  the  tax  is  erroneously  paid.91 

In  New  York,  under  the  act  of  18S7,92  application  for  res- 
titution of  taxes  paid  erroneously  must  be  made  to  the  state 
treasurer,  on  satisfactory  proof  rendered  to  the  state  comp- 
troller by  the  county  treasurer  or  county  comptroller  of  such 
erroneous  payment,  and  the  application  should  be  made 
within  five  years  from  the  date  of  the  payment.  In  this  re- 
spect the  method  pointed  out  by  the  statute  is  exclusive  of 
any  other  remedy.93 

Under  the  act  of  1S92,94  it  is  now  provided  that  it  shall 
be  lawful  for  the  comptroller  of  the  state,  upon  satisfactory 
proof  presented  to  him  of  the  facts,  to  require  the  amount 
of  such  illegal  or  erroneous  payment  to  be  refunded  to  the 

8T  See  chapter  5,  §  54,  subd.  c. 

ss  Com.  v.  Coleman,  52  Pa.  St.  4GS. 

8  9  In  re  Goldstein's  Estate.  10  Phila.  319. 

90  People  v.  Wemple,  69  Hun,  307,  23  N.  Y.  Supp.  061,  664;    133 
N.  Y.  617,  30  N.  E.  1002. 
9i  See  chapter  4,  §  49. 

92  Appendix,  I.  a,  e,  c.  713,  §  12;  Laws  1S92,  c.  399,  §  0.  Redf. 
Surr.  Prac.  (4th  Ed.)  p.  580,  considers  this  section  incapable  of  en- 
forcement under  Const.  N.  Y.  art.  7,  §  S. 

93  in  re  Howard,  54  Hun,  305,  7  N.  Y.  Supp.  594;  Dewey  v.  Super- 
visors, 02  N.  Y.  294.  See,  also,  In  re  Hall's  Estate  (Sup.)  7  N.  Y. 
Supp.  595;  In  re  Keech  (Surr.)  7  N.  Y.  Supp.  331,  affirmed,  Id.  (Sup.) 
11  N.  Y.  Supp.  205. 

9  4  Laws  1892,  c.  399,  §  0. 

(403) 


§    06  REMEDY    AND    PRACTICE.  [Ch.   8 

executor,  administrator,  trustee,  person,  or  persons  who 
have  paid  any  such  tax  in  error,  from  the  treasury;  or  the 
said  comptroller  ma}',  by  order,  direct  and  allow  the  treas- 
urer of  any  county,  or  the  comptroller  of  the  city  of  New 
York,  to  refund  the  amount  of  any  illegal  or  erroneous  pay- 
ment of  such  tax  out  of  the  funds  in  his  hands  or  custody 
to  the  credit  of  such  taxes,  and  credit  himself  with  the  same 
in  his  quarterly  account  rendered  to  the  state  comptroller. 
Applications  for  refunding  must,  as  under  the  act  of  1887, 
be  made  within  five  years  from  the  payment  of  the  tax. 
Under  this  act 95  the  surrogate  has  power  to  direct  the  tax 
to  be  refunded  while  it  is  still  in  the  hands  of  the  county 
treasurer.96 

But  the  question  of  restitution  does  not  properly  arise 
upon  a  mere  appeal  from  the  order  assessing  and  fixing  the 
tax,  taken  after  the  payment  of  the  tax,  to  which  appeal  nei- 
ther the  comptroller  nor  the  state  treasurer  is  made  a  par- 
ty.97 

Where  a  tax  is  paid  under  protest  and  the  law  is  subse- 
quently declared  unconstitutional,  such  tax  may  be  recov- 
ered back.98 

A  writ  of  prohibition  will  lie  against  a  probate  judge,  to 
restrain  the  enforcement  of  a  collateral  inheritance  tax 
upon  the  ground  that  it  is  unconstitutional.99 

95  Laws  1S92,  c.  399,  §  10. 

»e  in  re  Parks'  Estate,  8  Misc.  Rep.  550,  29  N.  Y.  Supp.  1081. 

»7  in  re  Hall,  supra.  For  return  of  duty  under  English  statutes, 
see  Layton,  Leg.  &  Succ.  Duties  (7th  Ed.)  p.  236  et  seq. 

os  Mearkle  v.  Hennepin  Co.,  44  Minn.  546,  47  N.  W.  165;  Cooley, 
Tax'n,  566,  and  eases  cited. 

»9  Chambe  v.  Durfee  (1894)  100  Mich.  112,  58  N.  W.  661. 
(404) 


Ch.  8]  REMEDY    AND    PRACTICE.  §    67 

§  67.     Lien   of  the  Tax  and  Its   Effect— Statute  of 
Limitations. 

A  lien  is  not,  in  strictness,  either  a  jus  in  rem,  or  a  jus 
ad  rem;  but  it  is  simply  a.  right  to  retain  and  possess  prop- 
erty until  some  charge  attaching  to  it  has  been  paid  or  dis- 
charged.100 As  a  general  rule  taxes  do  not  become  liens 
upon  the  property  subject  to  taxation  until  they  have  been 
assessed  in  the  manner  required  by  statute,101  unless  es- 
pecially declared  to  be  liens,  when  they  are  termed  statu- 
tory liens,  and  by  force  of  the  statute  immediately  impress 
themselves  as  a  liability  upon  the  property.102  Under  these 
statutes,  the  tax  is  generally  made  a  lien  upon  real  estate 
and  sometimes  upon  personal  property. 

Tinder  the  English  acts  a  very  comprehensive  lien  is  pro- 
vided for  upon  real  property,103  the  rights  of  bona  fide  pur- 
chasers without  notice  being  at  the  same  time  protected; 104 
and,  to  a  certain  extent,  personal  property  liable  to  the  tax 
is  also  subjected  to  a  lien  to  secure  its  payment.105  ■ 

Under  the  New  York  statutes  106  the  tax  remains  a  gen- 

ioo  l  Story,  Eq.  Jur.  §  506. 

ioi  Lathers  v.  Keogh,  109  N.  Y.  5S3.  17  N.  E.  131;  Dowdney  v. 
Mayor,  etc.,  54  N.  Y.  18G. 

102  Heine  v.  Commissioners,  19  Wall.  655;  Tompkins  v.  Little  Rook 
&  Ft.  S.  R.  Co.,  125  U.  S.  119,  8  Sup.  Ct.  762;  Id.,  18  Fed.  344. 

103  16  &  17  Vict.  c.  51,  §  42;  see  Attorney  General  v.  Giles,  5  Hurl. 
&  N.  255. 

104  10  &  17  Vict.  c.  51,  §  52. 

105  As  to  when  the  purchaser  of  real  estate  under  agreement  to 
buy  free  from  incumbrances  is  liable  to  pay  succession  duty  as  be- 
tween himself  and  the  vendor,  see  Cooper  v.  Trewby,  2S  Bear.  194; 
In  re  Langham,  60  Law  J.  Ch.  110;  Dugdale  v.  Meadows,  L.  R.  9 
Eq.  212. 

loo  Laws  1SS7,  §  2.  See,  also,  Laws  1892,  c.  399,  §§  3,  5,  Appendix, 
I.  a,  e. 

(405) 


§   67  REMEDY    AND    PRACTICE.  [Ch.    8 

era!  lien  until  it  is  paid.  It  also  remains  a  charge  upon 
the  real  estate  until  paid.107  The  same  provisions  are  con- 
tained in  the  act  of  1892,108  and  there  is  no  limitation  of 
time  in  favor  of  executors  or  legatees  against  the  tax  as  a 
penalty  or  forfeiture  under  the  Civil  Code.109 

A  certified  copy  of  the  county  treasurer's  receipt  showing 
payment  of  the  tax  will  be  full  protection  to  bona  fide  pur- 
chasers 110  against  any  future  claim.  As  a  general  rule, 
a  statute  of  limitations  will  not  bind  the  state  unless  it  has 
expressly  consented  to  be  bound.111 

Under  the  Illinois  statute  112  the  lien  of  the  collateral 
inheritance  tax  continues  until  the  tax  is  settled  and  satis- 
fied, but  said  lien  is  limited  to  the  property  chargeable 
therewith,  and  all  inheritance  taxes  shall  be  sued  for  with- 
in five  years  after  they  are  due  and  legally  demandable, 
otherwise  they  are  presumed  to  be  paid,  and  cease  to  be 
a  lien  as  against  purchasers  of  real  estate. 

The  present  statute  of  Pennsylvania,113  provides  for  a 
statutory  lien  of  five  years  upon  real  estate,  but  after  that 
time  the  lien  is  presumed  to  be  paid  as  against  purchasers 
of  such  real  estate.114 

Under  the  original  act  of  1826,  the  tax  became  a  lien 
from  the  time  of  the  death  of  decedent,  when  the  tax  ac- 

107  Laws  1892,  c.  399,  §  6,  Appendix,  I.  e. 

108  id. 

io9  In  re  Vanderbilt's  Estate  (Suit.)  10  N.  Y.  Supp.  239;  citing  Code 
Civ.  Proe.  §  3S4,  providing  that  "an  action  upon  a  statute  for  a  for- 
feiture or  penalty  to  the  people  of  the  state"  must  be  brought  within 
two  years  after  the  cause  of  action  accrues. 

no  In  re  Keenan's  Estate  (Surr.)  5  N.  Y.  Supp.  200;  In  re  Astor's 
Estate  (Surr.)  2  N.  Y.  Supp.  630. 

in  Cullen's  Estate  (1891)  142  Pa.  St.  18,  21  Atl.  781. 

112  Appendix,  X.,  Laws  111.  1895  (Bradwell's  Ed.)  p.  217,  §  22. 

us  Appendix,  X.,  Laws  1887,  §§  7,  20. 

ii4  Appendix,  X.,  Laws  1SS7,  §  12. 
(406) 


Ch.   8]  REMEDY    AND    PRACTICE.  §    67 

crued,  and  so  remained  until  fully  paid.118  Subsequently, 
by  act  of  1855,  it  was  limited  to  20  years.116 

The  tax  or  lien,  however,  under  these  statutes,  only  at- 
taches to  what  remains  for  distribution  after  the  expense 
of  administration,  debts,  and  rightful  claims  of  third  par- 
ties are  provided  for.  It  attaches  upon  the  net  succession 
to  the  beneficiaries,  and  not  upon  the  securities  or  land  in 
which  the  estate  of  the  deceased  may  be  invested.117 

The  lien  of  the  tax  is,  however,  perpetual  against  owners, 
devisees,  or  legatees,  and  the  limitation  in  the  acts  applies 
only  to  the  purchasers  of  such  real  estate.118 

The  proviso  of  the  statute  was  simply  intended  to  quiet 
the  title  of  purchasers  of  real  estate,  and  that  is  the  extent 
of  its  operation.  Where  there  is  no  purchaser  to  protect, 
the  lien  of  taxes  due  upon  real  estate,  as  well  as  the  debt 
itself,  will  continue  after  five  years,  notwithstanding  that 
suit  is  not  brought  within  that  time.119 

Where  a  debt  is  barred  by  the  statute  of  limitations,  and 
is  subsequently  recognized  by  the  decedent  as  a  valid  claim, 
in  the  shape  of  a  legacy  for  the  amount,  it  is  not  liable  to 
duty.120     The  commonwealth  is  not  barred  from  collecting 

us  Com.  v.  Coleman,  52  Pa.  St.  470. 

ne  Mellon's  Appeal,  114  Pa.  St.  564,  8  Atl.  1S3. 

ii7  See  cases  cited  chapter  5,  §§  52,  55;  Orcutt's  Appeal,  97  Pa.  St. 
179;  Commissioner's  Appeal  (Avery's  Estate)  34  Pa.  St.  204;  Strode 
v.  Com.,  52  Pa.  St.  181;  In  re  Rubincam's  Estate,  38  Leg.  Int.  261; 
Commissioner's  Appeal  (Cooper's  Estate)  127  Pa.  St.  435,  17  Atl.  1094, 
affirming  Cooper  v.  Com.,  5  Pa.  Co.  Ct.  R.  271;  Cullen's  Estate,  supra; 
In  re  Will  of  Enston,  113  N.  Y.  181,  21  N.  E.  87;  Mellon's  Appeal, 
supra. 

us  Cullen's  Estate,  26  Wkly.  Notes  Cas.  216,  142  Pa.  St.  18,  21  Atl. 
781;  James'  Appeal,  2  Del.  Co.  Rep.  164;  Mellon's  Appeal,  supra; 
In  re  Butler's  Estate  (1894)  14  Pa.  Co.  Ct.  R.  667. 

no  In  re  Cullen's  Estate  (1891)  142  Pa.  St.  18,  21  Atl.  781. 

120  Williamson  v.  Naylor,  3  Younge  &  C.  Exch.  208.  See  chapter 
8,  §  67. 

(407) 


§   67  REMEDY    AND    PRACTICE.  [Ch.   8 

the  inheritance  tax  by  proceedings  begun  more  than  five 
years  after  the  passage  of  the  act  of  1887,121  where  prior  to 
that  act  the  widow  bought  the  estate  in  remainder  from 
collateral  heirs.122 

After  42  years,  collateral  inheritance  tax  will  be  presumed 
to  have  been  paid,  not  onl}-  on  the  ground  of  lapse  of  time, 
but  also  from  the  presumption  that  the  executor  did  his 
duty  under  his  oath  of  office.123 

One  of  the  most  interesting  cases  upon  the  subject  of  the 
lien  is  that  of  Mellon's  Appeal,124  in  which  the  supreme 
court  of  Pennsylvania  decided  two  important  questions: 
First,  as  to  the  effect  of  the  failure  on  the  part  of  the  state 
to  prosecute  the  lien  created  in  its  favor,  as  against  a  bona 
fide  purchaser  without  notice,  within  20  years  after  the  tax 
accrued;  and,  secondly,  the  effect  of  such  neglect  upon  col- 
lateral heirs  still  possessing  the  property.  The  facts  showed 
that  in  1849  the  wife  of  one  B.  died  intestate,  seised  of  cer- 
tain lands,  leaving  as  her  only  heirs  her  husband  and  three 
minor  children.  Under  the  statute  the  land  descended  to  the 
children,  subject  to  the  father's  life  estate.  In  1864  the  eld- 
est daughter  died  intestate,  without  issue,  and  unmarried, 
and  subject  to  the  life  estate,  and  charged  with  the  tax  her 
third  interest  devolved  upon  her  brother  and  sister.  There 
was  no  administration  of  her  estate.  In  1866  the  father, 
as  guardian  of  the  two  children,  sold  three  acres  of  the 
land;  and  in  1870,  at  maturity,  the  children  conveyed  four 
acres  to  their  father,  B.,  he  releasing  his  life  estate  in  the 
residue  of  the  property.  He  died  in  1872,  devising  the  land 
to  children  by  a  second  marriage.  The  share  of  one  child 
was  sold  in  partition  to  Mellon,  and  the  other  child  sold  part 

121  May  G,  1SS7. 

122  Butler's  Estate  (1S94)  14  Pa.  Co.  Ct.  R.  C.G7. 

123  in  re  Stewart's  Estate"(Bell's  Appeal;  1S92)  147  Fa.  St.  3S3,  ZZ 
Atl.  599. 

124  114  Pa.  St.  504,  S  Atl.   1S3. 
(408) 


Ch.   8]  REMEDY    AND    PRACTICE.  §   67 

of  her  share,  retaining  a  portion.  In  holding  that  the  ac- 
tion could  not  be  maintained  by  the  state,  the  court  said: 12B 
"If  the  tax  accrued  at  the  time  of  Mrs.  B.'s  decease,  in  1864, 
by  the  devolution  of  her  undivided  interest  in  the  land,  and 
the  commonwealth  might  have  proceeded  at  any  time  there- 
after to  have  the  same  appraised,  and  the  amount  of  tax 
ascertained,  with  a  view  of  its  ultimate  collection,  the  lapse 
of  twenty  years  without  any  steps  having  been  taken  in 
that  direction  raises  a  conclusive  presumption  of  payment 
as  to  bona  fide  purchasers  from  those  to  whom  the  remain- 
der in  fee  descended,  and  the  lien  theretofore  existing  in 
favor  of  the  commonwealth  forthwith  ceased,  as  to  such 
purchasers." 

It  was  further  held  that  the  fact  that  no  administration 
was  had  upon  the  estate  liable  to  the  tax,  for  which  reason 
the  matter  was  not  brought  to  the  attention  of  the  register, 
did  not  operate  to  remove  the  bar,  and  that  as  to  the  portion 
of  the  estate  unsold,  subject  to  the  tax,  it  must  be  deemed  to 
have  been  constructively  paid,  by  the  fact  that  the  money 
realized  from  judicial  sales  of  the  interest  bound  by  the  lien 
was  sufficient  to  have  paid  the  tax;  and  the  court  said:  "If 
the  claim  had  been  made,  the  court  would  doubtless  have  re- 
tained its  grasp  on  a  sufficient  amount  of  the  funds  to  pay 
the  tax  lien,  but  no  claim  upon  the  fund  was  ever  made. 
*  *  *  That  fact  did  not,  however,  prevent  the  discharge 
of  the  lien  by  judicial  sales  producing  funds  applicable  pri- 
marily to  the  lien,  and  more  than  sufficient  to  pay  it."  126 

Thus  the  lien  of  the  tax  upon  real  estate  was  held  to  be 
divested  by  the  sheriff's  sale  in  partition. 

And  where  the  purchaser  of  land  upon  which  there  was 
a  lien  for  unpaid  taxes  due  the  state  was  compelled  to  pay 
the  same,  to  save  the  land  from  sale  under  execution,  he  was 

125  Page  5G9,  114  Pa.  St..  and  page  1S3.  8  Atl. 

126  Mellon's  Appeal,  supra.  See  Martin's  Estate.  19  Pa.  Law  J.  (N. 
S.)  145;  Willing's  Estate,  33  Leg.  Int.  54,  2  Wkly.  Notes  Cas.  307,  308; 

(400) 


§    67  REMEDY    AND    PRACTICE.  [Ch.   8 

allowed  to  recover  the  amount  paid  from  his  vendors,  upon 
an  implied  covenant  in  the  deed  of  sale.127 

The  acts  of  congress  subjected  the  property  liable  to  the 
tax  to  liens,  and  specified  the  method  of  enforcing  payment, 
but,  as  we  have  seen,128  they  did  not  create  a  personal  lia- 
bility on  the  part  of  the  legatee,  unless  he  received  the  tax- 
able interest  or  property,  and  in  order  to  enforce  the  lien 
there  must  have  been  a  neglect  or  refusal  to  pay  the  tax  by 
the  person  having  the  property,  after  demand  made.129  The 
duty  became  a  lien  from  the  time  the  tax  became  due  and 
payable.130  After  20  years  the  tax  was  presumed  to  be  paid, 
and  the  lien  ceased.131 

So  purchasers  of  land  upon  the  descent  of  which  a  suc- 
cession tax  is  due  under  these  acts132  incur  no  personal 
liability  to  pay  it,  but  take  the  title  subject  to  the  lien;  and 
it  seems  a  party  is  not  liable  for  payment  of  the  tax  due 
upon  the  descent  of  the  land,  greater  than  his  share  in  the 
land.133 

Where  the  land  which  is  subject  to  the  tax  has  been  sold 
in  parcels  successively,  the  last  sold,  if  of  sufficient  value, 

Wilhelmi  v.  Wade,  65  Mo.  39;  Succession  of  Dupuy,  33  La.  Ann. 
260;  In  re  Keenan's  Estate  (Suit.)  5  N.  Y.  Supp.  200.  See,  also, 
Kortright  v.  Blunt,  12  How.  Prac.  424,  reversed  on  another  ground, 
21  N.  Y.  343;    Daly  v.  Sanders,  9  N.  Y.  St.  Rep.  794. 

127  Large  v.  McClain  (Pa.  Sup.)  7  Atl.  101.  See  Boyd's  Estate,  4 
Wkly.  Notes  Cas.  510. 

i2s  Supra,  p.  388. 

129  U.  S.  v.  Pennsylvania  Co.,  27  Fed.  539;  U.  S.  v.  Trucks,  Id. 
541;    Sohier  v.  Eldridge,  103  Mass.  349;   Wilhelrni  v.  Wade,  supra. 

130  Clapp  v.  Mason,  94  U.  S.  592;  U.  S.  v.  Allen,  Fed.  Cas.  No. 
14.430;   U.  S.  v.  Hazard,  8  Fed.  380. 

isi  Mason  v.  Sargent,  104  U.  S.  690.  As  to  when  action  to  recover 
back  penalty  illegally  exacted  upon  succession  tax  is  not  barred,  see 
Wright  v.  Blakeslee,  101  U.  S.  174. 

132  i  Brightly.  Purd.  Dig.  (12th  Ed.)  p.  308,  §  25. 

133  Wilhelmi  v.  Wade,  supra;  Succession  of  Dupuy,  33  La.  Ann.  260. 
But  see  Large  v.  McClain,  supra. 

(410) 


Qh.   8]  REMEDY    AND    PRACTICE.  §    68 

is  liable  for  the  whole  tax,  notwithstanding  that  the  first 
sold  at  judicial  sale  was  sufficient  to  have  paid  the  tax.  The 
last  lot  sold  stands  in  relation  of  principal  to  the  first,134 
and,  where  there  are  several  tracts  of  land  of  a  decedent  to 
be  valued  for  the  tax,  the  tracts  should  be  valued  separately, 
and  as  occupied  by  the  tenants.136 

§  68.     Interest  and   Penalties   for   Nonpayment   of 

Tax. 

These  acts  frequently  impose  interest  from  the  time  the 
tax  accrues,  which  is  generally  at  decedent's  death,  until  its 
final  payment,  and  also  penalties  for  nonpayment  of  the  tax 
when  due.  Ordinarily,  a  tax  does  not  carry  interest  by  iiu 
plication  of  law,136  as  in  the  case  of  a  debt;  and  in  all  sys- 
tems of  taxation,  where  default  is  made  in  the  payment  of 
the  tax,  interest  is  added  by  way  of  penalty  for  such  de- 
fault.137 

Statutes  imposing  penalties  are  to  be  strictly  construed 
against  the  claim.138 

As  a  rule,  suits  to  recover  penalties  under  statutes  of  this 
character  cannot  be  enforced  in  foreign  states  or  coun- 
tries.139 

134  Martin's  Estate.  19  Pittsb.  Legi.  J.  (N.  S.)  145,  28  Atl.  575,  dis- 
tinguishing Mellon's  Appeal,  114  Pa.  St.  5(34,  8  Atl.  183. 

13  5  McKean's  Estate,  12  Pittsb.  Leg.  J.  (N.  S.)  299.  But  see  In  re 
Keenan's  Estate  (Suit.)  5  N.  Y.  Supp.  200. 

136  Cooley,  Tax'n  (2d  Ed.)  p.  17;   Hil.  Tax'n,  p.  16. 

is?  In  re  Prout's  Estate,  53  Hun,  543,  G  N.  Y.  Supp.  457;  Brewer's 
Estate,  16  Pittsb.  Leg.  J.  (N.  S.)  114;  Banks'  Estate,  5  Pa.  Co.  Ct. 
R.  015. 

138  in  re  Prout's  Estate,  supra,  affirmed  117  N.  Y.  650,  22  N.  E. 
1132.  And  see  Chase  v.  Railroad  Co.,  26  N.  Y.  525;  Sprankle  v. 
Com.,  2  Walk.  (Pa.)  420. 

139  Wisconsin  v.  Pelican  Ins.  Co..  127  U.  S.  2C,rK  s  Sup.  Ct.  1370. 
As  to  when  a  nonresident's  estate  is  not  liable  for  penalty,  In  re 
Purroy,  7  N.  Y.  Law  J.  344. 

(411) 


§    68  REMEDY    AND    PRACTICE.  [Ch.   8 

Under  the  Pennsylvania  acts  of  1849  and  1855,  if  the  tax, 
which  was  imposed  upon  all  estates,  including  remainders, 
was  not  paid  within  nine  months  after  decedent's  death,  it 
carried  a  penalty  of  12  per  cent,  from  the  date  of  death.140 

Under  the  act  of  1887,  the  interest  on  taxes  for  which 
tenant  in  remainder  is  liable  begins  to  run  only  from  the 
time  such  tenant  has  the  right  of  actual  possession  or  en- 
joyment.141 

Where  the  failure  to  pay  inheritance  tax  promptly  is 
caused  by  an  honest  doubt,  as  to  the  liability  (i.  e.  whether 
life  tenant  or  tenant  in  remainder  is  liable),  the  penalty  for 
nonpayment  should  not  be  exacted.142 

Where  there  is  unavoidable  delay  in  the  settlement  of  de- 
cedent's estate,  the  12  per  cent,  penalty  is  not  chargeable, 
but  interest  from  the  end  of  the  year  should  be  added.143 

Where  the  delay  in  payment  of  the  tax  was  caused  by  the 
resistance  of  the  executors  and  legatees  to  the  common 
wealth's  claim,  and  the  case  was  decided  adversely  to  the 

140  com.  v.  Smith,  20  Pa.  St.  100;  Commonwealth's  Appeal 
(Avery's  Estate)  34  Pa.  St.  204;  In  re  McKean's  Estate,  12  Pittsb. 
Leg.  J.  (N.  S.)  299,  300;  James'  Appeal,  2  Del.  Co.  R.  164;  Com.  v. 
Bailsman,  10  Lane.  Bar  (Pa.)  1S9.  The  act  of  1855,  substituting  6  per 
cent,  annual  charge  for  the  12  per  cent,  penalty,  is  not  inconsistent 
with  the  act  of  18S7.  Commonwealth's  Appeal  (Fagely's  Estate)  128 
Pa.  St.  612, 18  Atl.  3S6;  In  re  Banks'  Estate,  5  Pa.  Co.  Ct.  R.  614.  See 
these  acts  considered  and  explained  as  to  the  rate  of  interest, 
Mellon's  Appeal,  114  Pa.  St.  570,  573.  8  Atl.  1S3;  In  re  Del  Busto's 
Estate,  45  Leg.  Int.  474;  23  Wkly.  Notes  Cas.  Ill;  Commonwealth's 
Appeal  (Cooper's  Estate)  127  Pa.  St.  435,  17  Atl.  1096. 

1*1  Commonwealth's  Appeal  (Cooper's  Estate)  supra.  And  see  In 
re  Wharton's  Estate,  10  Wkly.  Notes  Cas.  106;  In  re  King's  Estate, 
11  Phila.  26;   In  re  Brewer's  Estate,  16  Pittsb.  Leg.  J.  (N.  S.)  114. 

1*2  Sprankle  v.  Com.  (1884)  2  Walk.  (Pa.)  420,  citing  Com.  v.  Eber- 
vale  Coal  Co.,  2  Pears.  (Pa.)  421;  Easton  Bank  v.  Com.,  10  Pa.  St. 
451.    But  see  In  re  Piatt's  Estate  (Suit.;   1894)  29  N.  Y.  Supp.  396. 

14  3  Commonwealth's  Appeal  (1889)  128  Pa.  St.  603,  IS  Atl.  3S0. 
(412) 


Ch.    8]  REMEDY    AND    PRACTICE.  §    08 

executors,  the  judgment  bears  interest  from  the  expiration 
of  one  year  after  the  date  of  decedent's  death.144 

Litigation  to  toll  the  liability  of  an  estate  for  penalty  for 
nonpayment  of  the  tax,  after  the  expiration  of  the  year, 
must  be  such  as  withholds  the  real  and  personal  estate  from 
the  parties  entitled  thereto.145 

A  controversy  between  rival  claimants  under  a  deed  and 
will  will  not  toll  the  penalty,  nor  does  litigation  among  the 
distributees  toll  the  penalty.140 

Where,  under  these  statutes,  there  has  been  "an  unavoid- 
able cause  of  delay"  or  necessary  litigation  in  the  settlement 
of  the  estate,  the  penalty  for  delay  in  payment  of  the  tax 
cannot  be  imposed,  but  in  such  cases  only  6  per  cent,  inter- 
est is  recoverable  on  the  tax  from  the  end  of  the  year  suc- 
ceeding decedent's  death;147  and  by  the  New  York  stat- 
ute 148  the  penalty  of  10  per  cent,  imposed  for  the  nonpay- 
ment of  the  tax  is  likewise  not  chargeable  in  such  cases. 

Under  the  act  of  1S87,149  no  interest  or  penalty  was 
chargeable  during  the  first  18  months  after  decedent's  death. 
From  that  time  to  the  entry  of  the  order  fixing  the  tax, 

I**  In  re  Small's  Estate  (1S92)  151  Pa.  St.  1,  25  Atl.  23. 

145  in  re  Small's  Estate,  supra. 

146  in  re  Maris'  Estate  (1893)  50  Leg.  Int.  45S;  14  Pa.  Co.  Ct.  R. 
171;   3  Pa.  Dist.  R.  33. 

i4-  Commonwealth's  Appeal  (Fagely's  Estate)  supra;  In  re  Banks' 
Estate,  supra;  In  re  McKean's  Estate,  12  Pittsb.  Leg.  J.  (N.  S.)  299, 
300;  Mellon's  Appeal,  supra;  Com.  v.  Bailsman,  10  Lane.  Bar  (Pa.) 
1S9;  Commonwealth's  Appeal  (Avery's  Estate)  34  Pa.  St.  204;  In  re 
Prout's  Estate,  53  Hun,  541,  6  N.  Y.  Supp.  457;  Id.,  117  N.  Y.  650, 
22  N.  E.  1132;  In  re  Stewart,  131  N.  Y.  274,  30  N.  E.  1S4.  As  to  rate 
of  penalty  under  acts  of  congress,  and  when  actions  to  recover  back 
penalty  erroneously  paid  is  not  barred  by  statute  of  limitation,  see 
Wright  v.  Blakeslee,  101  U.  S.  174. 

i4s  Appendix,  I.  a.,  Laws  1887,  §§  4,  5.  See  these  provisions  ex- 
plained per  Van  Brunt,  P.  J.,  In  re  Prout's  Estate,  supra;  In  re  Vas- 
sal-, 127  N.  Y.  S,  27  N.  E.  394. 

14  9  Laws  N.  Y.  1S87,  c.  713,  §  4. 

(413) 


§    68  REMEDY    AND   PRACTICE.  [Ch.  8 

interest  at  the  rate  of  6  per  cent,  is  chargeable,  and  there- 
after the  penalty  of  10  per  cent,  is  imposed.150 

Under  the  New  York  act  of  1S92,151  if  the  tax  is  paid 
within  six  months  from  the  accruing  thereof,  a  discount  of 
5  per  cent,  is  allowed  and  deducted.  If  the  tax  is  not  paid 
within  18  months  from  the  accruing  thereof,  interest  shall 
be  charged  and  collected  thereon  at  the  rate  of  10  per  cent, 
per  annum  from  the  time  the  tax  accrued,  unless,  by  reason 
of  claims  made  upon  the  estate,  necessary  litigation,  or  other 
unavoidable  cause  of  delay,  such  tax  cannot  be  determined 
and  paid,  in  which  case  interest  at  the  rate  of  6  per  cent, 
per  annum  shall  be  charged  upon  such  tax  from  the  accrual 
thereof  until  the  cause  of  such  delay  is  removed,  after  which 
10  per  cent,  shall  be  charged. 

The  burden,  however,  under  this  clause  of  the  statute, 
rests  upon  the  party  claiming  exemption  from  penalty  to 
show  that  he  comes  within  the  provisions  of  the  act,  namely, 
that  the  settlement  of  the  estate  has  been  delayed  by  nec- 
essary litigation,  or  other  unavoidable  cause,  and  that,  there- 
fore, he  is  not  in  a  condition  to  settle  the  estate,  or  to  pay 
the  tax,152 

Where  decedent's  estate  largely  consisted  in  business  en- 
terprises in  partnership  with  others,  and  the  executor  did 
not  receive  the  proceeds  of  these  investments,  but  they  went 
to  swell  the  corpus  of  the  estate  until  final  settlement,  and 
the  transactions  were  so  complicated  that  it  was  unsafe  for 
the  executor  to  estimate  what  amount  would  be  subject  to 
the  tax,  and  the  appraisers  themselves  reduced  their  first 
report  of  the  taxable  value  by  a  large  amount,  it  was  held 
that  there  was  '"unavoidable  cause"  of  delay  for  failing  to 
make  the  estimate  within  a  year  after  decedent's  death,  and 

iso  See  In  re  Roosevelt,  9  N.  Y.  Law  J.  128;    citing  In  re  Prout's 
Estate,  supra.    See  In  re  Halsey,  Id.  532. 
is1  Appendix,  I.  e,  §  4. 

152  in  re  Prout's  Estate,  53  Hun,  544,  G  N.  Y.  Supp.  457. 
(414) 


Ch.   8]  REMEDY    AKD    PRACTICE.  §    68 

that  the  penalty  could  not  be  exacted,  though  such  delay 
continued  13  years.1-'" 

But  the  fact  that  the  parties  were  foreigners,  and  igno- 
rant of  the  law,  is  no  excuse  for  bringing  them  within  the 
exceptions  of  the  act  as  regards  penalty;154  and  it  would 
seem  that  the  fact  that  all  proceedings  in  relation  to  the  es- 
tate are  stayed  upon  proceedings  for  revocation  of  probate 
of  the  will  of  decedent  prevents  penalty,  but  does  not  pre- 
vent the  running  of  ordinary  interest  charged  for  nonpay- 
ment of  the  tax.155 

Where,  under  the  act  of  1887,156  the  liability  for  penalty  for 
nonpayment  of  tax  has  been  removed,  interest  is  only 
chargeable  at  the  rate  of  G  per  cent,  from  the  expiration  of 
18  months  after  decedent's  death.  Under  the  act  of  1892,157 
where  the  penalty  is  removed  interest  is  now  chargeable 
from  the  date  of  death.  Under  a  saving  clause,  however, 
this  provision  of  the  act  does  not  apply  to  the  estate  of  one 
dying  before  the  passage  of  the  act.  In  such  case  the  for- 
mer act  appiles.158 

The  act  of  1887  provided  that  the  penalty  should  not  be 
imposed  where,  by  reason  of  claims  upon  the  estate,  litiga- 
tion or  other  unavoidable  cause  of  delay,  "the  estate  of  any 
decedent  or  a  part  thereof  could  not  be  settled  at  the  end 

153  Commonwealth's  Appeal  (Fagely's  Estate)  12S  Ta.  St.  003,  18 
Atl.  386. 

is*  In  re  McKean's  Estate,  supra;  In  re  Piatt  (1894)  29  N.  Y.  Supp. 
396.  As  to  what  constitutes  excusable  delay  and  when  executor 
liable  for  interest,  see  In  re  Banks'  Estate,  5  Pa.  Co.  Ct.  R.  614,  616. 

155  in  re  Stewart,  131  N.  Y.  274,  30  N.  E.  1S4;  citing  Code  Civ. 
Proc.  §§  2650,  406. 

ise  Laws  1S87,  c.  713,  §§  4,  5. 

157  Laws  1892,  c.  399,  §  4. 

168  in  re  Fayerweather,  143  N.  Y.  119.  38  N.  E.  278.  See,  also,  as 
to  penalty  and  interest,  In  re  Ferrer.  N.  Y.  Law  J.  June  30,  1892,  p. 
1062;  In  re  Hoghtaling,  8  N.  Y.  Law  J.  450;  In  re  Purroy,  7  N.  Y. 
Law  J.  344;   In  re  Cunningham,  Id.  954. 

(415) 


§    68  REMEDY    AND    PRACTICE.  [Ch.   8 

of  18  months  from  the  death  of  decedent,"  which  was  a  re- 
enactment  of  the  act  of  1885,  except  that  the  period  of  set- 
tlement was  therein  fixed  at  1  year,  instead  of  18  months. 
Under  the  act  of  1892,  the  penalty  is  not  charged  where 
claims,  litigation,  or  other  unavoidable  cause  of  delay  pre- 
vents "the  determination  and  payment  of  the  tax."  It  also 
changes  the  terms  upon  which  the  remission  is  granted. 
In  the  prior  acts  the  G  per  cent,  interest  ran  from  the  ex- 
piration of  18  months  from  accrual  to  the  date  when  the 
cause  of  delay  was  removed,  while  in  the  act  of  1892,  in 
cases  where  the  penalty  is  not  interposed,  interest  at  the 
rate  of  G  per  cent,  is  charged  from  the  date  of  death  until 
the  cause  of  delay  is  removed. 

Where  decedent  died  about  a  year  before  the  act  of  1892 
went  into  effect,  interest  and  penalty  are  regulated  by  the 
act  of  1887,  then  in  force,  and  in  this  respect  the  act  of  1892 
was  not  intended  to  be  retroactive.159 

A  petition  for  the  remission  of  penalty  is  not  sufficient 
where  it  appears  that  there  were  sufficient  moneys  at  all 
times  in  the  executor's  hands  to  pay  tax,  independent  of  con- 
tested claims.160 

In  all  applications  to  remit  penalty,  the  date  when  the 
cause  of  delay  was  removed  should  be  fixed,161  and  the  liti- 
gation must  be  the  necessary  litigation  referred  to  in  the 
act.162 

Penalty  will  be  remitted  where  the  tax  has  not  been  paid 
owing  to  litigation  necessary  to  determine  the  validity  of  a 
trust.163 

159  in  re  Milne,  76  Hun,  32S,  27  N.  Y.  Supp.  729.  Contra,  holding 
that  in  such  cases  the  act  of  1892  applied,  see  In  re  Acker,  9  N.  Y. 
Law  J.  350;   In  re  Colhoun,  N.  Y.  Law  J.  July  15,  1S93. 

i6o  in  re  Hall,  12  N.  Y.  Law  J.  781. 

id  In  re  Colhoun,  N.  Y.  Law  J.  July  15,  1S93. 

102  in  re  Sloane,  7  N.  Y.  Law  J.  951;  111  re  Cunningham,  Id.  954; 
In  re  Colhoun,  N.  Y.  Law  J.  July  15,  1893. 

io3  in  re  Hope,   N.  Y.   Law  J.  Feb.   13,  1893. 
(416) 


Ch.  8]  REMEDY    AND    PRACTICE.  §    69 

The  fact  that  the  only  asset  out  of  which  the  tax  could 
be  paid  was  a  seat  in  the  stock  exchange,  which  the  execu- 
tors did  not  think  it  prudent  to  sell,  and  held  for  a  rise,  is 
not  sufficient  to  relieve  from  penalty.164  It  seems  that 
where,  under  decedent's  will,  there  is  a  power  of  appoint- 
ment, interest  at  the  rate  of  6  per  cent,  is  only  chargeable 
from  the  time  the  power  is  exercised.  No  penalty  can  be 
awarded  in  such  case.165 

Where,  pending  an  appeal 166  from  the  appraiser's  report, 
the  parties  liable  to  the  tax  under  the  decree  of  the  lower 
court  make  voluntary  payment  of  it,  this  does  not  estop  the 
state  from  prosecuting  the  appeal,  and  recovering  interest 
upon  the  tax  to  the  date  of  payment.167 

§  69.     Retroactive,     Amendatory,     and    Repealing 

Statutes.168 

The  question  as  to  whether  estates  vesting  or  undistrib- 
uted before  the  passage  of  the  law  become  subject  to  taxa- 
tion seems  to  be  purely  one  of  legislative  intent. 

In  England  the  "succession  duty  act"  is  in  many  respects 
plainly  retroactive,  as  well  as  prospective,  in  its  operations; 
but  in  this  country  retroactive  statutes  are  not  generally 

is*  in  re  Colhoun,  N.  Y.  Law  J.  July  15,  1893. 

las  in  re  Purroy,  N.  Y.  Law  J.  March  6,  1892,  citing  In  re  Stewart, 
13  N.  Y.  274,  30  N.  E.  184;  Id.  (Suit.)  10  N.  Y.  Supp.  15;  In  re  Cun- 
ning-ham, 7  N.  Y.  Law  J.  954. 

166  ?ee  practice  on  such  appeals.     Chapter  5,  §  55. 

167  Commonwealth's  Appeal  (Fagely's  Estate)  128  Pa.  St  603, 
7.8  Atl.  386.  As  to  effect  of  receipt  in  full  for  tax  given  by  state,  see 
chapter  7,  §  63,  note  146;  In  re  Brewer's  Estate,  16  Pittsb.  Leg.  J. 
(N.  S.)  114;  15  Pittsb.  Leg.  J.  (N.  S.)  435;  Commonwealth's  Appeal, 
supra;  In  re  Keenan  (Surr.)  5  N.  Y.  Supp.  200;  In  re  Vanderbilt's 
Estate   (Suit.)  10  N.  Y.  Supp.   239. 

lessee  the  retroactive  New  York  act  of  1892,  c.  399,  §  1.  subd.  3; 
acts  of  congress  and  English  statutes  discussed  in  chapter  6,  §  58, 
subds.   3,    f. 

LAW  ENHER. — 27  (417) 


§    69  REMEDY    AND    PRACTICE.  [Ch.  8 

favored,  and  the  statutes  are  held  to  apply  only  to  property 
passing  upon  the  death  of  a  decedent  occurring  after  the 
particular  statute  went  into  effect.  Acts,  however,  which 
impose  a  tax  upon  estates  vesting  or  undistributed  before 
such  acts  became  operative,  though  retroactive,  are  held 
to  be  constitutional.169 

But  a  retroactive  operation  will  not  be  given  by  construc- 
tion, so  as  to  subject  to  the  tax  estates  passing  prior  to 
the  passage  of  the  act,  though  they  be  subject  to  life  estates 
which  do  not  fall  until  after  the  statute  became  opera- 
tive.170 

Under  this  rule,  it  has  been  held  in  New  York  that  prop- 
erty conveyed  by  irrevocable  deed  of  trust  to  trustees  to 
pay  the  income  to  the  grantor  during  life,  with  remainder 
over  to  collateral  heirs  after  her  death,  which  was  executed 
and  took  effect  before  the  passage  of  the  act,  is  not  liable 
to  taxation,  though  the  grantor  died  afterwards.171  This 
holding,  in  view  of  subsequent  cases,  is,  however,  doubtful.* 

So,  as  the  tax  is  generally  imposed  upon  the  estate  owned 
by  the  decedent  passing  at  the  time  of  death,  interest  or 
income  in  the  nature  of  increase  or  accretions  to  the  estate 
subsequently  arising  is  not  liable.172 

There  are,  however,  cases  which  seem  to  be  exceptions 
to  this  rule,  as  in  the  case  of  powers  of  appointment  not 

169  Chapter  2,  §  24;  Carpenter  v.  Pennsylvania,  17  How.  456; 
Attorney  General  v.  Middleton,  3  Hurl.  &  N.  125;  In  re  Short's 
Estate,  16  Pa.  St.  66. 

i7o  Folsom  v.  U.  S.,  21  Fed.  37;  Blake  v.  McCartney,  4  Cliff.  101, 
Fed.  Cas.  No.  1498;  Succession  of  Oyon,  6  Rob.  (La.)  504;  Succession 
of  Deyraud,  9  Rob.  (La.)  357;  Carpenter  v.  Pennsylvania,  supra;  In 
re  Cogswell,  4  Dem.  Sur.  248;  In  re  Hendricks  (Suit.)  3  N.  Y.  Supp. 
2S1. 

i"i  In  re  Hendricks,  supra. 

*  See  In  re  Lines'  Estate,  155  Pa.  St.  388.  26  Atl.  728. 

172  in  re  Miller's  Estate,  45  Leg.  Int.  175;  Com.  v.  Freedley,  21 
Pa.  St.  33-36;  Commonwealth's  Appeal  (Cooper's  Estate)  127  Pa. 
(418) 


Cll.   8]  REMEDY    AND    PRACTICE.  §   69 

executed  until  long  after  testator's  death;173  and  in  Eng 
land,  under  the  peculiar  provisions  of  the  statute,  a  tax  hns 
been  allowed  upon  the  subsequent  increase  in  value  of  prop- 
erty already  once  assessed.174 

Where,  by  the  terms  of  testator's  will,  the  first  year's  in- 
come is  added  to  principal,  and  both  principal  and  income 
applied,  indiscriminately  and  without  distinction,  to  the 
payment  of  debts  and  legacies,  the  collateral  tax  accrues 
upon  so  much  of  the  corpus  as  has  thus  been  preserved  to 
pass  from  testator  to  his  collateral  heirs.175 

So,  generally,  the  rate  of  the  tax  is  that  imposed  or  fixed 
at  the  time  the  estate  passed  and  became  subject  to  the 
tax,  and  not  that  imposed  by  subsequent  statute.176 

In  New  York,  by  statute,  and  doubtless  in  many  other 
states,  the  common-law  rule  that  a  statute  was  deemed  to 
date  and  take  effect  as  of  the  first  day  of  the  session  at 
which  it  was  passed177  is  now  abrogated;178  and  in  that 
state  every  law,  unless  a  different  time  shall  be  prescribed 
therein,  commences  and  takes  effect  throughout  the  state 
on,  and  not  before,  the  20th  day  after  the  day  of  its  final 
passage,  as  certified  by  the  secretary  of  state.179 

St.  435,  17  Atl.  1094,  affirming  5  Parker,  Cr.  R.  275;  Attorney  General 
v.  Sefton,  11  H.  L.  Cas.  257-269. 

its  Chapter  6,  §  GO.  See  In  re  Stewart,  131  N.  Y.  274,  30  N.  E. 
184;   Id.  (Surr.)  10  N.  Y.  Supp.  15. 

174  gee  chapter  5,  §  55;  Attorney  General  v.  Dardier,  L.  R.  11  Q. 
B.   Div.   16. 

17  5  in  re  Williamson's  Estate,  143  Pa.  St.  150,  22  Atl.  836.  Con- 
tra, In  re  Floyd,  4  N.  Y.  Law  J.  1378. 

176  com.  v.  Eckert.  53  Pa.  St.  102;  Com.  v.  Smith,  20  Pa.  St.  100; 
In  re  King's  Estate,  11  Phila.  26;  In  re  James'  Appeal,  2  Del.  Co. 
Rep.  164. 

177  Latless  v.  Holmes,  4  Term  R.  660;  Panter's  Case,  6  Brown, 
Pari.  Cas.  486. 

17  s  In  re  Kemeys,  56  Hun,  117,  9  N.  Y.  Supp.  182.    See,  also,  In  re 
Howe,  4S  Him,  236,  affirmed  112  N.  Y.  103,  19  N.  E.  513. 
17  9  1  Rev.  St.  N.  Y.  (7th  Ed.)  p.  433,  §  12. 

(419) 


§    69  REMEDY    AND    PRACTICE.  [Ch.  8 

This  provision  has  been  considered  in  connection  with 
acts  imposing  collateral  inheritance  taxes,  and  it  has  been 
held  that  although  the  act  of  1885  contained  the  words, 
"after  the  passage  of  this  act,"  the  law  did  not  take  effect 
until  20  days  after  its  passage,  and  that,  therefore,  prop- 
erty passing  by  will  of  one  dying  after  the  passage  of  the 
act,  but  prior  to  the  da}7  upon  which  it  took  effect,  was  not 
liable  to  the  tax.180  So  an  act  providing  that  "it  shall 
take  effect  immediately"  does  not  apply  to  the  estate  of  a 
testator  who  died  on  the  same  day,  but  just  before  the  act 
was  approved.181 

With  regard  to  amendatory  statutes,  the  rule  seems  to 
be  general  that  they  have  no  retroactive  force  upon  taxes 
already  due,  unless  clearly  intended  by  the  legislature,  as 
the  portions  of  the  amended  sections  which  are  merely 
copied  without  change  are  not  to  be  considered  as  repealed 
and  again  enacted,  but  to  have  been  the  law  all  along,  and 
the  new  parts  or  changed  portions  are  not  to  be  taken  as 
the  law  at  any  time  prior  to  the  passage  of  the  amended 
act.182 

When  a  statute  amends  a  former  statute  "so  as  to  read  as 
follows,"  it  operates  as  a  repeal  by  implication  of  inconsist- 
ent provisions  in  the  former  law,  and  of  provisions  therein 
omitted  in  the  latter.  When,  however,  the  amendatory  act 
re-enacts  provisions  in  the  former  law,  either  ipsissimis 
verbis,  or  by  the  use  of  equivalent  though  different  words, 
the  law  will  be  regarded  as  having  been  continuous;  and 
the  new  enactment,  as  to  such  parts,  will  not  operate  as  a 

iso  in  re  Howe,  supra,  overruling  In  re  Chardavoyne,  5  Dem. 
Sur.  466.  In  re  Cac:er,  46  Hun,  600,  is  also  overruled  on  this  point. 
See  111  N.  Y.  347,  18  N.  E.  S60,  and  In  re  Kerneys,  supra. 

isi  Laws  1891,  c.  215;  In  re  Dreyfous  (1S92;  Surr.)  18  N.  Y.  Supp. 
707. 

182  in  re  Arnett,  49  Hun,  599,  2  N.  Y.  Supp.  42S;  In  re  Miller's 
Estate,  110  N.  Y.  223,  18  N.  E.  139,  citing  Ely  v.  Holton,  15  N.  Y.  595. 
(420) 


Ch.   8]  REMEDY    AND    PRACTICE. 

repeal,  so  to  affect  a  duty  accrued  under  the  prior  law,  al- 
though as  to  all  new  transactions,  the  later  law  will  be 
referred  to  as  the  ground  of  obligation.  Accordingly,  the 
direct  tax  act  of  1S91,183  which  amended,  "so  as  to  read 
as  follows,"  the  first  section  of  the  act  of  18S5,18*  did  not 
operate  to  prevent  the  subsequent  assessment  and  collec- 
tion of  a  tax  on  the  estate  of  a  decedent  who  died  interme- 
diate the  act  of  1887  and  that  of  1801.185 

The  liability  to  the  tax  of  the  estates  of  decedents  dying 
previous  to  its  passage  is  continued  by  Laws  1892,186  and 
proceedings  instituted  thereunder  may  be  continued  there- 
after under  the  prior  law.  All  proceedings  instituted 
thereafter  are  regulated,  however,  by  the  last  act,  though 
the  law  in  existence  at  decedent's  death  must  govern  as 
to  rights  accrued  and  liabilities  incurred.187 

So  where  an  amendatory  act  was  passed  by  the  legisla- 
ture, purporting  to  exempt  adopted  children  theretofore 
liable,  which,  it  was  declared,  should  "take  effect  immedi- 
ately," and  subsequent  to  its  passage,  but  before  being  ap- 
proved by  the  executive,  a  decree  was  made  taxing  adopt- 
ed children,  it  was  held  that  the  decree  was  not  vitiated  by 
the  amendatory  statute,  as  it  did  not  become  a  law  at  the 
time  of  its  passage,  but  only  subsequently,  and  from  the 
time  of  its  approval  by  the  executive.188 

iss  Laws  N.  Y.  1S91,  c.  215. 

is*  Laws  18S5,  c.  483. 

iss  in  re  Prime  (1S93)  affirmed  64  Hun,  50,  18  N.  Y.  Supp.  603,  and 
136  N.  Y.  353,  32  N.  E.  1091,  distinguishing  Ely  v.  Holton,  15  N.  Y. 
595. 

iss  Chapter  399. 

187  in  re  Richardson,  N.  Y.  Law  J.  Jan.  31,  1S93;  In  re  Sterling's 
Estate  (1S94;  Surr.)  30  N.  Y.  Supp.  3S5,  citing  In  re  Miller,  19  N. 
Y.  St.  Rep.  246. 

iss  in  re  Kemeys,  supra;  In  re  Howe,  4S  Hun,  236,  affirmed  112 
N.  Y.  103,  19  N.  E.  513;  In  re  Hughes,  2  N.  Y.  Law  J.  (July  27,  1889) 
817;   In  re  Dreyfous,  supra. 

(421) 


§    69  REMEDY    AND    PRACTICE.  [Ch.   8 

Where,  however,  the  assessment  under  the  prior  law  was 
made  after  the  passage  of  the  act  relieving  adopted  chil- 
dren, or  those  standing  in  the  "mutually  acknowledged  re- 
lation," they  are  not  subject  to  the  tax.189 

So,  where  adopted  children  were  exempted  by  a  stat- 
ute190 which  was  declared  to  be  amendatory  of  the  prior 
law,  it  was  held  not  retroactive,  and  that  such  adopted 
children  as  were  liable  under  the  former  act191  continued 
so  liable,  and  the  rights  of  the  state  were  not  affected  by 
the  fact  that  the  tax  had  not  been  paid  at  the  time  of  the 
passage  of  the  amendatory  act.192 

The  New  Jersey  act 193  does  not  affect  real  estate  devised 
previous  to  the  passage  of  the  act.194 

Nor  does  such  a  statute  affect  the  vested  rights  of  the 
state  against  such  children  theretofore  liable,  although  pro- 
ceedings to  collect  the  tax  were  not  commenced  until  after 
the  amended  statute  went  into  effect.195 

It  seems  now,  however,  that  all  adopted  children  and 

189  In  re  Thomas,  3  Misc.  Rep.  3S8,  24  N.  Y.  Supp.  713,  distinguish- 
ing In  re  Kemeys,  supra. 

190  Appendix,  Laws  1887,  c.  713,  §  1.  See,  upon  this  subject,  chap- 
ter 3,  §  6. 

i9i  Laws  1885.  c.  483. 

192  in  re  Miller,  supra,  affirming  47  Hun,  394;  In  re  Brooks,  6 
Dem.  Sur.  165;  In  re  Spencer's  Estate  (Suit.)  4  N.  Y.  Supp.  395. 

193  Laws  1894,  c.  210,  Appendix,  II. 

194  in  re  Dobermiller,  17  N.  J.  Law  J.  37S. 

i»5  In  re  Kemeys  (per  Barrett,  J.,  reviewing  cases)  56  Hun,  117, 
9  N.  Y.  Supp.  182,  distinguished  in  Re  Thomas,  3  Misc.  388,  24  N. 
Y.  Supp.  713.  For  other  authorities,  see  In  re  Arnett,  49  Hun,  599, 
2  N.  Y.  Supp.  428;  In  re  Kissam's  Estate  (Suit.)  3  N.  Y.  Supp. 
135;  In  re  Ryan's  Estate  (Surr.)  3  N.  Y.  Supp.  136;  In  re  Cager, 
111  N.  Y.  347,  IS  N.  E.  S66;  In  re  Brooks,  6  Dem.  Sur.  165;  In 
re  Hendricks'  Estate  (Surr.)  3  N.  Y.  Supp.  281;  In  re  Thompson,  6 
Dem.  Sur.  211;  In  re  Shaw's  Estate,  N.  Y.  Daily  Reg.  April  3,  1SS9. 
Contra,  In  re  Cager,  46  Hun,  660,  overruled  in  111  N.  Y.  347,  4  N. 
E.  713;  In  re  Spencer's  Estate  (Suit.)  4  N.  Y.  Supp.  395. 
(422), 


Ch.   8]  REMEDY    AND    PRACTICE.  \    69 

others  in  the  same  class  are  exempted  in  New  Y<nk,'"; 
where  no  assessment  was  made  against  them,  by  order  of 
the  surrogate,  at  the  time  of  the  passage  of  the  last-named 
act197 

So  the  act  of  1890,198  relieving  certain  charitable  and 
religious  institutions  from  the  tax,  being  clearly  prospective 
in  its  operation,  and  applicable  only  to  future  cases,  a  tax 
due  before  the  act  went  into  operation  19°  may  still  be  en- 
forced.200 

Where,  however,  the  statute  under  which  it  is  sought  to 
collect  the  tax  has  not  merely  been  amended,  but  abso- 
lutely repealed,  and  the  remedy  taken  away,  all  proceed 
ings  under  the  prior  act  fall,  and  the  tax  cannot  afterwards 
be  collected.201 

196  Laws  N.  Y.,  Appendix,  I.  a,  §  25.  as  amended  by  Laws  1889, 
c.  479.  The  children  of  such  adopted  children  are,  however,  not 
within  the  exemption  of  the  statute.  In  re  Bird's  Estate  (Surr.)  11 
N.  Y.  Supp.  895.  In  Connecticut  they  are  relieved  by  express  pro- 
vision of  the  statute,  supra,  chapter  3,  §  34,  subd.  g. 

197  Laws  1S89,  supra;  In  re  Kemeys,  56  Hun,  117,  9  N.  Y.  Supp. 
182;  In  re  Hughes'  Estate,  supra;  In  re  Thome's  Estate,  N.  Y. 
Law  J.  Jan.  21,  1890;   In  re  Thomas,  supra. 

i9s  Chapter  553,  Appendix,  I.  b. 

199  June  7,  1S90. 

200  Sherrill  v.  Christ  Church  of  Pougkkeepsie,  31  N.  Y.  St.  Rep. 
S9G,  121  N.  Y.  701,  25  N.  E.  50,  reversing  In  re  Van  Kleeck,  55  Hun, 
472.  See,  also,  Estate  of  Minturn,  3  N.  Y.  Law  J.  S04.  As  to  the 
effect  of  the  act  of  Pennsylvania  of  1887  upon  prior  statutes  of  that 
state,  see  Commonwealth's  Appeal  (Pagely's  Estate)  128  Pa.  St. 
612,  18  Atl.  386;  In  re  Del  Busto's  Estate,  23  Wkly.  Notes  Cas.  Ill; 
Commonwealth's  Appeal  (Cooper's  Estate)  127  Pa.  St.  435,  17  Atl. 
1094;  Commonwealth's  Appeal  (Bittinger's  Estate)  129  Pa.  St.  338, 
IS  Atl.  132;  Mellon's  Appeal,  114  Pa.  St.  570,  8  Atl.  183;  In  re 
Banks'  Estate,  5  Pa.  Co.  Ct.  R.  614;  In  re  Goldstein's  Estate,  16 
Phila.  319;  Wayne's  Estate,  2  Pa.  Co.  Ct.  R.  93;  Fox  v.  Com.,  16 
Grat.  1. 

2oi  in  re  Arnett,  49  Hun,  603,  2  N.  Y.  Supp.  42S;  Knox  v.  Bald- 
win, SO  N.  Y.  610;  Nash  v.  Bank,  105  N.  Y.  243,  11  N.  E.  916;  In 
re  Prime,  136  N.  Y.  347,  362,  32  N.  E.  1091;   People  v.  Supervisors,  67 

(423) 


§   69  REMEDY    AND    PRACTICE.  [Ch.   8 

Where,  however,  there  is  a  saving  clause  as  to  taxes  ac- 
cruing under  vested  interests  prior  to  the  repealing  act, 
such  taxes  may  be  assessed  and  collected  afterwards.202 

Where  the  decedent  died  before  the  repealing  act,  and 
the  legatee  or  successor  did  not  come  into  possession,  nor 
his  rights  accrue,  until  after  the  repealing  act  went  into 
effect,  it  seems  the  tax  is  not  saved  by  the  saving  clause.203 

N.  Y.  109;  Bailey  v.  Mason,  4  Minn.  550  (Gil.  430);  Dunwell  v. 
Bidwell,  8  Minn.  34  (Gil.  18);  In  re  North  Canal  Street  Road,  10  Watts 
(Pa.)  351;  Cooley,  Tax'n  (2d  Ed.)  p,  18;  Fox's  Adm'r  v.  Com.,  16  Grat. 
1 ;  Eyre  v.  Jacob,  14  Grat.  422.  See  Quessart  v.  Canonge,  3  La.  560, 
and  Arnaud  v.  Holland,  Id.  337,  where  it  was  held  that  where  the 
tax  becomes  due  before  the  repealing  act  the  rights  of  the  state 
under  the  law  existing  at  the  time  remain  unaffected  by  the  repeal- 
ing act. 

202  Act  Cong.  1870  (16  Stat.  261,  §  17),  repealing  the  legacy  and 
succession  acts,  contained  a  clause  saving  "all  taxes  properly  as- 
sessed or  liable  to  be  assessed,  or  accruing  under  the  provisions  of 
foi-iner  acts  or  drawbacks,  or  which  may  hereafter  accrue  under 
said  acts,"  etc.  See,  construing  this  section,  May  v.  Slack,  16  Int. 
Rev.  Rec.  134,  Fed.  Cas.  No.  9,336;  U.  S.  v.  Townsend,  8  Fed.  306; 
Clapp  v.  Mason,  94  U.  S.  589. 

203  Mason  v.  Sargent,  104  U.  S.  689.  See  Id.,  23  Int.  Rev.  Rec. 
155,  Fed.  Cas.  No.  9,253;  Sturges  v.  U.  S.,  117  U.  S.  363,  6  Sup.  Ct. 
767;  Helman  v.  U.  S.,  15  Blatchf.  13,  Fed.  Cas.  No.  6,341;  U.  S.  v. 
New  York  Life  Ins.  &  Trust  Co.,  9  Ben.  413,  Fed.  Cas.  No.  15,873; 
Clapp  v.  Mason,  supra;  U.  S.  v.  Hazard,  8  Fed.  380;  U.  S.  v.  Kelley, 
28  Fed.  845;  U.  S.  v.  Brice,  8  Fed.  381.  See  U.  S.  v.  Rankin,  Id.  872, 
where  the  various  conflicting  decisions  under  the  legacy  and  succes- 
sion acts  of  congress  are  considered  by  Treat,  District  Judge.  Aud 
see,  generally,  Com.  v.  Standard  Oil  Co.,  101  Pa.  St.  149. 

(424) 


APPENDIX  OF  STATUTES, 


I. 

NEW  YORK.1 

(a)  Laws  1887,  c.  713,  with  Amendments  to  1802. 

(b)  Laws  1800,  c.  553,  as  to  Charitable  Corporations. 

(c)  Laws  1892,  c.  169. 

(d)  Laws  1892,  c.  443. 

(e)  "Transfer  Tax  Act, "Laws  1892,  c.  399,  with  Amendments 

to  1895. 

(f)  Special  Acts. 

II. 

NEW  JERSEY. 

III. 

PENNSYLVANIA. 

IV. 

MASSACHUSETTS. 

(a)  Laws  1891,  c.  425,  with  Amendments  to  1895. 

(b)  Laws  1893,  c.  432. 

(c)  Laws  1895,  c.  307. 

V. 

MAINE. 

VI. 

OHIO. 

(a)  Laws  1893,  p.  14,  as  Amended  by  Laws  1894,  p.  169. 

(b)  Laws  1894,  p.  166. 

VII. 

CONNECTICUT. 

VIII. 

MARYLAND. 

IX. 

CALIFORNIA. 

X. 

ILLINOIS. 

I.  NEW  YORK  STATUTES. 

(a)  Laws  1887,  Ch.  713,  with  Amendments  to  1892. 

'An  act  to  amend  chapter  four  hundred  and  eighty-three  of 
the  Laws  of  Eighteen  Hundred  and  Eighty-Five,  entitled 
"An  act  to  tax  gifts,  legacies  and  collateral  inheritances 
in  certain  cases." 
Passed  June  25,  1887;  three-fifths  being  present. 

1(The  statute  now  in  force  in  the  state  of  New  York  is  chapter  399  of 
the  Laws  of  1892,  known  as  the  "Transfer  Tax  Act.  "  By  section  23  of 
this  act,  most  of  the  earlier  statutes  have  been  repealed  as  follows: 
Laws  1835.  c.  483;  Laws  1887,  c.  713;  Laws  1889,  c.  307;  Laws  1889,  c. 
479;  Laws  1891,  c.  215.  For  the  benefit  of  the  profession  and  in  order 
that  all  the  earlier  statutes  may  be  readily  consulted,  it  has  been  deemed 
prudent  to  retain  these  statutes,  beginning  with  that  of  1887.) 

LAW  INHEB.  (425) 


426  APPENDIX  OF  STATUTES.        [N.Y.,I.  a. 

The  people  of  the  state  of  New  York,  represented  in  senate 
and  assembly,  do  enact  as  follows: 

Section  1.  Chapter  four  hundred  and  eighty-three  of  the 
Laws  of  Eighteen  Hundred  and  Eighty-Five,  entitled ''An  act 
to  tax  gifts,  legacies  and  collateral  inheritances  in  certain 
cases,"  is  hereby  amended  so  as  to  read  as  follows: 

State  tax  upon  certain  property,  &c,  passed  by- 
will  or  intestate  laws — Rate  of  tax  and  to  whom 
payable — Estates  under  $500  exempt. 

§  1.  After  the  passage  of  this  act  all  property  which  shall 
pass  by  will  or  by  the  intestate  laws  of  this  state,  from  any 
person  who  may  die  seized  or  possessed  of  the  same  while 
a  resident  of  this  state,  or  if  such  decedent  was  not  a  resident 
of  this  state  at  the  time  of  death,  which  property,  or  any 
part  thereof,  shall  be  within  this  state,  or  any  interest  there- 
in, or  income  therefrom  which  shall  be  transferred  by  deed, 
grant,  sale  or  gift,  made  or  intended  to  take  effect  in  posses- 
sion or  enjoyment  after  the  death  of  the  grantor  or  bargain- 
or, to  any  person  or  persons,  or  to  any  body  politic  or  corpo- 
rate, in  trust  or  otherwise,  or  by  reason  whereof  any  person 
or  body  politic  or  corporate  shall  become  beneficially  entitled 
in  possession  or  expectancy,  to  any  property  or  to  the  income 
thereof,  other  than  to  or  for  the  use  of  his  or  her  father, 
mother,  husband,  wife,  child,  brother,  sister,  the  wife  or 
widow  of  a  son,  or  the  husband  of  a  daughter,  or  any  child 
or  children  adopted  as  such  in  conformity  with  the  laws  of 
the  state  of  New  York,  or  any  person  to  whom  the  deceased 
for  not  less  than  ten  years  prior  to  his  or  her  death  stood 
in  the  mutually  acknowledged  relation  of  a  parent,  and  any 
lineal  descendant  of  such  decedent  born  in  lawful  wedlock, 
or  the  societies,  corporations  and  institutions  now  exempted 
by  law  from  taxation  by  reason  whereof  any  such  person 
or  corporation  shall  become  beneficially  entitled,  in  posses- 
sion or  expectancy,  to  any  such  property,  or  to  the  income 
thereof,  shall  be  and  is  subject  to  a  tax  of  five  dollars  on 
every  hundred  dollars  of  the  clear  market  value  of  such 
property,  and  at  and  after  the  same  rate  for  any  less  amount, 
to  be  paid  to  the  treasurer  of  the  proper  county,  and  in  the 
city  and  county  of  New  York  to  the  comptroller  thereof,  for 
the  use  of  the  state,  and  all  administrators,  executors  and 
trustees,  shall  be  liable  for  any  and  all  such  taxes  until  the 
same  shall  have  been  paid  as  hereinafter  directed,  provided 
that  an  estate  which  may  be  valued  at  a  less  sum  than  five 
hundred  dollars  shall  not  be  subject  to  such  duty  or  tax. 


N.  Y.,I.  a.]  APPENDIX    OF   STATUTES.  427 

[See  Laws  1S92,  c.  1G9,  amending  this  section.     See  post, 
subd.  c] 

Appraisal  of  property  after  death  of  decedent  in 
certain  cases — Duty  of  surrogate  as  to  valuation 
— Tax  to  be  immediately  payable  thereon — Per- 
sons, &c,  beneficially  interested  may  give  bond 
therefor,  &c. — Verified  return  of  property  to  sur- 
rogate. 

§  2.  When  any  grant,  gift,  legacy  or  succession  upon  which 
a  tax  is  imposed  by  section  first  of  this  act,  shall  be  an  estate, 
income  or  interest  for  a  term  of  years  or  for  life,  or  determi- 
nable upon  any  future  or  contingent  event,  or  shall  be  a  re- 
mainder, reversion  or  other  expectancy,  real  or  personal,  the 
entire  property  or  fund,  by  which  such  estate,  income  or 
interest  is  supported,  or  of  which  it  is  a  part,  shall  be  ap- 
praised immediately  after  the  death  of  the  decedent,  at  what 
was  the  fair  and  clear  market  value  thereof  at  the  time  of  the 
death  of  the  decedent,  in  the  manner  hereinafter  provided, 
and  the  surrogate  shall  thereupon  assess  and  determine  the 
value  of  the  estate,  income  or  interest  subject  to  said  tax,  in 
the  manner  recorded  in  section  thirteen  of  this  act,  and  the 
tax  prescribed  by  this  act  shall  be  immediately  due  and 
payable  to  the  treasurer  of  the  proper  county,  and  in  the  city 
or  county  of  New  York  to  the  comptroller  thereof,  and  to- 
gether with  the  interest  thereon,  shall  be  and  remain  a  lien 
on  said  property  until  the  same  is  paid;  provided  that  the 
person  or  persons,  or  body  politic  or  corporate  beneficially 
interested  in  the  property  chargeable  with  said  tax,  may 
elect  not  to  pay  the  same  until  they  shall  come  into  the  ac- 
tual possession  or  enjoyment  of  such  property  and  in  that  case 
such  person  or  persons  or  body  politic  or  corporate,  shall 
give  a  bond  to  the  people  of  the  state  of  New  York  in  a  pen- 
alty of  three  times  the  amount  of  the  tax  arising  upon  per- 
sonal estate,  with  such  sureties  as  the  surrogate  of  the  proper 
county  may  approve  conditioned  for  the  payment  of  said 
tax  and  interest  thereon  at  such  time  or  period  as  they  or 
their  representatives  may  come  into  the  actual  possession 
or  enjoyment  of  such  property,  which  bond  shall  be  filed  in 
the  office  of  the  surrogate  of  the  proper  county;  provided, 
further,  that  such  person  shall  make  a  full  Verified  return 
of  such  property  to  said  surrogate,  and  file  the  same  in  his 
office  within  one  year  from  the  death  of  the  decedent,  and 
within  that  period  enter  into  such  security  and  renew  the 
same  every  five  years. 


428  APPENDIX    OF    STATUTES.  [N.  Y.,I.  a. 

Executors  or  trustees,  commissions  of,  when  liable 
to  tax. 

§  3.  Whenever  a  decedent  appoints  or  names  one  or  more 
executors  or  trustees  and  makes  a  bequest  or  devise  of  prop- 
erty to  them  in  lieu  of  their  commissions  or  allowances, 
which  otherwise  would  be  liable  to  said  tax,  or  appoints 
them  his  residuary  legatees,  and  said  bequest,  devises  or  resid- 
uary legacies  exceed  what  would  be  a  reasonable  compensa- 
tion for  their  services,  such  excess  shall  be  liable  to  said  tax, 
and  the  surrogate's  court  having  jurisdiction  in  the  case 
shall  fix  such  compensation. 

Taxes,  "when  due  and  payable — Interest  thereon. 

§  4.  All  taxes  imposed  by  this  act,  unless  otherwise  here- 
in provided  for,  shall  be  due  and  payable  at  the  death  of  the 
decedent,  and  if  the  same  are  paid  within  eighteen  months, 
no  interest  shall  be  charged  and  collected  thereon,  but  if 
not  so  paid,  interest  at  the  rate  of  ten  per  cent,  per  annum 
shall  be  charged  and  collected  from  the  time  said  tax  ac- 
crued; provided,  that  if  said  tax  is  paid  within  six  months 
from  the  accruing  thereof  a  discount  of  five  per  cent,  shall 
be  allowed  and  deducted  from  said  tax,  and  in  all  cases 
where  the  executors,  administrators  or  trustees  do  not  pay 
such  tax  within  eighteen  months  from  the  death  of  the  de- 
cedent, they  shall  be  required  to  give  a  bond  in  the  form  and 
to  the  effect  prescribed  in  section  two  of  this  act  for  the 
payment  of  said  tax,  together  with  interest. 

Penalty  for  non-payment  of  tax — When  and  how 
chargeable. 

§  5.  The  penalty  of  ten  per  cent,  per  annum  imposed  by 
section  four  hereof,  for  the  nonpayment  of  said  tax,  shall 
not  be  charged  where  in  cases  by  reason  of  claims  made 
upon  the  estate,  necessary  litigation  or  other  unavoidable 
cause  of  delay,  the  estate  of  any  decedent,  or  a  part  thereof, 
cannot  be  settled  at  the  end  of  eighteen  months,  from  the 
death  of  the  decedent,  and  in  such  cases  only  six  per  cent, 
per  annum  shall  be  charged  upon  the  said  tax,  from  the  ex- 
piration of  said  eighteen  months  until  the  cause  of  such  de- 
lav  is  removed. 


N.  Y.,I.  a.]       APPENDIX  OF  STATUTES.  429 

Deductions  of  tax  from  legacies  by  trustees,  etc. — 
Payments,  how  made  if  legacy  is  not  in  money 
— Tax,  how  enforced  —  Other  provisions  as  to 
limited  bequests,  etc. 

§  6.  Any   administrator,   executor  or  trustee    having   in 

charge,  or  trust,  any  legacy  or  property  for  distribution,  sub- 
ject to  the  said  tax,  shall  deduct  the  tax  therefrom,  or  if 
the  legacy  or  property  be  not  money,  he  shall  collect  the  tax 
thereon  upon  the  appraised  value  thereof  from  the  legatee 
or  person  entitled  to  such  property,  and  he  shall  not  de- 
liver, or  be  compelled  to  deliver,  any  specific  legacy  or  prop- 
erty subject  to  tax  to  an}'  person  until  he  shall  have  col- 
lected the  tax  thereon;  and  whenever  any  such  legacy  shall 
be  charged  upon  or  payable  out  of  real  estate,  the  heir  or 
devisee,  before  paying  the  same,  shall  deduct  said  tax  there- 
from, and  pay  the  same  to  the  executor,  administrator  or 
trustee,  and  the  same  shall  remain  a  charge  on  such  real 
estate  until  paid,  and  the  payment  thereof  shall  be  enforced 
by  the  executor,  administrator  or  trustee  in  the  same  man- 
ner that  the  payment  of  such  legacy  might  be  enforced;  if, 
however,  such  legacy  be  given  in  money  to  any  person  for 
a  limited  period,  he  shall  retain  the  tax  upon  the  whole 
amount,  but  if  it  be  not  in  money,  he  shall  make  application 
to  the  court  having  jurisdiction  of  his  accounts,  to  make  an 
apportionment,  if  the  case  require  it,  of  the  sum  to  be  paid 
into  his  hands  by  such  legatees,  and  for  such  further  order 
relative  thereto  as  the  case  may  require. 

Sale  of  property  of  decedent  to  pay  tax. 

§  7.  All  executors,  administrators  aud  trustees  shall  have 
full  power  to  sell  so  much  of  the  property  of  the  decedent 
as  will  enable  them  to  pay  said  tax,  in  the  same  manner  as 
they  may  be  enabled  by  law7  to  do  for  the  payment  of  debts 
of  their  testators  and  intestates,  and  the  amount  of  said  tax 
shall  be  paid  as  hereinafter  directed. 

Payments,  -when  to  be  made  to  county  treasurer — 
Transmission  of  receipt  therefor  to  state  comp- 
troller —  Return  of  receipt,  countersigned  as 
voucher  to  executor,  etc. 

§  8.  Every  sum  of  money  retained  by  an  executor,  admin- 
istrator or  trustee,  or  paid  into  his  hands,  for  any  tax  on  any 
property,  shall  be  paid  by  him  within  thirty  days  thereafter, 
to  the  treasurer  of  the  proper  county,  or  in  the  city  and 


430  APPENDIX  OF  STATUTES.        [N.Y.,I.  a. 

county  of  New  York,  to  the  comptroller  thereof,  and  the  said 
treasurer  or  comptroller  shall  give,  and  every  executor,  ad- 
ministrator or  trustee  shall  take  duplicate  receipts  from  him 
of  such  payment,  one  of  which  receipts  he  shall  immediately 
send  to  the  comptroller  of  the  state,  whose  duty  it  shall  be 
to  charge  the  treasurer  or  comptroller  so  receiving  the  tax, 
with  the  amount  thereof,  and  shall  seal  said  receipt  with 
the  seal  of  his  office,  and  countersign  the  same  and  return 
it  to  the  executor,  administrator  or  trustee,  whereupon  it 
shall  be  a  proper  voucher  in  the  settlement  of  his  accounts, 
but  an  executor,  administrator  or  trustee  shall  not  be  en- 
titled to  credits  in  his  accounts,  nor  be  discharged  from  lia- 
bility for  such  tax,  unless  he  shall  produce  a  receipt  so 
sealed  and  countersigned  by  the  comptroller  or  a  copy  there- 
of certified  by  him. 

Executor,  etc.,  to  notify  county  treasurer,  etc.,  as 
to  passing  of  real  estate. 

§  9.  Whenever  any  of  the  real  estate  of  which  any  dece- 
dent may  die  seized  shall  pass  to  any  body  politic  or  cor- 
porate, or  to  any  person  or  persons  other  than  his  or  her 
father,  mother,  husband,  wife,  lawful  issue,  brother,  sister, 
wife  or  widow  of  a  son,  or  husband  of  a  daughter,  or  child 
or  children  adopted  by  such  decedent  according  to  law,  or 
any  person  to  whom  the  deceased  for  not  less  than  ten  years 
prior  to  his  or  her  death,  stood  in  the  mutually  acknowl- 
edged relation  of  a  parent,  or  in  trust  for  them,  or  some  of 
them,  it  shall  be  the  duty  of  the  executors,  administrators 
or  trustees  of  such  decedent,  to  give  information  thereof  in 
writing  to  the  treasurer  or  comptroller  of  the  county  where 
such  real  estate  is  situate,  within  six  months  after  they  un- 
dertake the  execution  of  their  respective  duties,  or  if  the 
fact  be  not  known  to  them  within  that  period,  then  within 
one  month  after  the  same  shall  have  come  to  their  knowl- 
edge. 

Repayment  of  proportion  of  tax  paid,  in  cases  of 
debts  proven  afterwards. 

§  10.  Whenever  any  debts  shall  be  proven  against  the  es- 
tate of  a  decedent,  after  the  payment  of  legacies  or  distri- 
bution of  property  from  which  the  said  tax  has  been  deduct- 
ed, or  upon  which  it  has  been  paid,  and  a  refund  is  made  by 
the  legatee,  devisee,  heir  or  next  of  kin,  a  proportion  of  the 
tax  so  paid  shall  be  repaid  to  him  by  the  executor,  admin- 
istrator or  trustee,  if  the  said  tax  has  not  been  paid  to  the 


N.  Y.,I.  a.]  APPENDIX    OF    STATUTES.  1-1 

county  treasurer,  comptroller,  or  to  the  state  treasurer,  <>r 
by  them  if  it  has  been  so  paid. 

Tax  upon  transfer  of  stocks  by  foreign  executor, 
etc. 

§  11.  Whenever  any  foreign  executor  or  administrator  shall 
assign  or  transfer  any  stocks  or  loans  in  this  state,  stand 
ing  in  the  name  of  a  decedent,  or  in  trust  for  a  decedent, 
which  shall  be  liable  to  the  said  tax.  such  tax  shall  be  paid  to 
the  treasurer  or  comptroller  of  the  proper  county  on  the  trans- 
fer thereof,  otherwise  the  corporation  permitting  such  trans- 
fer shall  become  liable  to  pay  such  tax,  provided  that  such 
corporation  had  knowledge  before  such  transfer  that  said 
stocks  or  loans  are  liable  to  said  tax. 

Tax  erroneously  paid,  refunding  of. 

§  12.  When  any  amount  of  said  tax  shall  have  been  paid 
erroneously  to  the  state  treasurer,  it  shall  be  lawful  for 
him,  on  satisfactory  proof  rendered  to  the  comptroller  by 
said  county  treasurer  or  comptroller  of  such  erroneous  pay- 
ment, to  refund  and  pay  to  the  executor,  administrator,  per- 
son or  persons  who  have  paid  any  such  tax  in  error,  the 
amount  of  such  tax  so  paid,  provided  that  all  such  applica- 
tions for  the  payment  of  such  tax  shall  be  made  within  five 
years  from  the  date  of  such  payment. 

Surrogate  to  appoint  appraiser  of  certain  estates — 
Duty  of  appraiser — To  report  to  surrogate — Sur- 
rogate to  fix  cash,  values  of  estates  and  tax  there- 
on— Rules  of  computation — Appeals  from  ap- 
praisement— Compensation  of  appraiser. 

§  13.  In  order  to  fix  the  value  of  property  of  persons  whose 
estates  shall  be  subject  to  the  payment  of  said  tax,  the  sur- 
rogate, on  the  application  of  any  interested  party,  or  upon 
his  own  motion,  shall  appoint  some  competent  person  as 
appraiser  as  often  as,  ancT whenever  occasion  may  require, 
whose  duty  it  shall  be  forthwith  to  give  such  notice  by  mail 
to  all  persons  known  to  have  or  claim  an  interest  in  such 
property,  and  to  such  persons  as  the  surrogate  may  by  order 
direct,  of  the  time  and  place  he  will  appraise  such  property; 
and  at  such  time  and  place,  to  appraise  the  same  at  its  fair 
market  value,  and  make  a  report  thereof  in  writing  to  said 
surrogate,  together  with  such  other  facts  in  relation  thereto 
as  said  surrogate  may  by  order  require,  to  be  filed  in  the 


432  APPENDIX  OF  STATUTES.        [N.  Y. ,  I.  a. 

office  of  such  surrogate;  and  from  this  report  the  said  sur- 
rogate shall  forthwith  assess  and  fix  the  then  cash  value  of 
all  estates,  annuities  and  life  estates  or  terms  of  years  grow- 
ing out  of  said  estate,  and  the  tax  to  which  the  same  is  lia- 
ble, and  shall  immediately  give  notice  thereof  by  mail  to 
all  parties  known  to  be  interested  therein,  and  the  value  of 
every  future  or  contingent  or  limited  estate,  income  or  in- 
terest shall,  for  the  purposes  of  this  act,  be  determined  by 
the  rule,  method  and  standards  of  mortality  and  of  value 
which  are  employed  by  the  superintendent  of  the  insurance 
department  in  ascertaining  the  value  of  policies  of  life  in- 
surance and  annuities,  for  the  determination  of  the  liabil- 
ities of  life  insurance  companies,  save  that  the  rate  of  in- 
terest to  be  assessed  in  computing  the  present  value  of  all 
future  interests  and  contingencies  shall  be  five  per  cent, 
per  annum;  and  the  superintendent  of  the  insurance  depart- 
ment shall,  on  the  application  of  any  surrogate,  determine 
the  value  of  such  future  or  contingent  or  limited  estate,  in- 
come or  interest,  urjon  the  facts  contained  in  such  report, 
and  certify  the  same  to  the  surrogate,  and  his  certificate 
shall  be  conclusive  evidence  that  the  method  of  computa- 
tions adopted  therein  is  correct.  Any  person  or  persons  dis- 
satisfied with  such  appraisement  or  assessment  may  appeal 
therefrom  to  the  surrogate  of  the  proper  county  within  sixty 
days  after  the  making  and  filing  of  such  assessment,  on  pay- 
ing or  giving  security  approved  by  the  surrogate  to  pay  all 
costs,  together  with  whatever  tax  shall  be  fixed  by  said 
court.  The  said  appraiser  shall  be  paid  by  the  county 
treasurer  or  comptroller  out  of  any  funds  he  may  have  in 
his  hands  on  account  of  said  tax,  on  the  certificate  of  the 
surrogate,  at  the  rate  of  three  dollars  per  day  for  every  day 
actually  and  necessarily  employed  in  said  appraisement,  to- 
gether with  his  actual  and  necessary  traveling  expenses 
including  the  fees  paid  such  witnesses.  The  comptroller 
of  the  city  and  county  of  New  York  shall  retain  out  of  any 
funds  he  may  have  in  his  hands  on  account  of  said  tax,  a 
sum  of  money  sufficient  to  provide  the  surrogate  in  the  city 
and  county  of  New  York  with  a  clerk  appointed  by  said  sur- 
rogate who  shall  be  known  as  the  "collateral  inheritance 
and  legacy  tax  clerk,"  and  whose  salary  shall  be  two  thous- 
and, four  hundred  dollars  a  year,  payable  monthly,  and  a 
further  sum  of  money,  not  exceeding  five  hundred  dollars  a 
year,  to  be  used  to  pay  the  expenses  of  the  said  surrogate 
necessarily  incurred  in  the  assessment  and  collection  of  said 
tax,   said  amounts   to  be  paid   upon  the  certificates   and 


N.  Y.,  I.  a.]  APPENDIX    OF    STATUTES.  433 

requisitions  of  said  surrogate  respectively.     [Laws  L889,  <•. 
307,  as  amended.      See  chapter  107,  Laws  ls!>2.] 

Appraiser  accepting  bribe,  how  punished. 

§  14.  Any  appraiser  appointed  by  virtue  of  this  act  who 
shall  take  any  fee  or  reward  from  any  executor,  administra- 
tor, trustee,  legatee,  next  of  kin  or  heir  of  any  decedent,  or 
from  any  other  person  liable  to  pay  said  tax,  or  any  portion 
thereof,  shall  he  guilty  of  a  misdemeanor,  and  upon  convic- 
tion in  any  court  having  jurisdiction  of  misdemeanors,  lie 
shall  be  lined  not  less  than  two  hundred  and  fifty  dollars 
nor  more  than  five  hundred  dollars,  and  imprisoned  not  ex- 
ceeding ninety  days,  and  in  addition  thereto  the  surrogate 
shall  dismiss  him  from  such  service. 

Jurisdiction  of  surrogate's  court. 

§  15.  The  surrogate's  court  in  the  county  in  which  the  real 
property  is  situate  of  a  decedent  who  was  not  a  resident  of 
the  state,  or  in  the  county  of  which  the  decedent  was  a  resi- 
dent at  the  time  of  his  death,  shall  have  jurisdiction  to  hear 
and  determine  all  questions  in  relation  to  the  tax  arising 
under  the  provisions  of  this  act,  and  the  surrogate  first  ac- 
quiring jurisdiction  hereunder  shall  retain  the  same  to  the 
exclusion  of  every  other. 

Citation  to  issue  to  person  liable  for  tax,  if  remain- 
ing unpaid — Proceedings  thereupon — Decree,  how 
docketed  and  filed — Transcripts  thereof,  -when  to 
be  furnished — County  treasurer  to  notify  district- 
attorney  of  failure  to  pay  tax — Duty  of  district- 
attorney — Costs. 

§  16.  If  it  shall  appear  to  the  surrogate's  court  that  any 
tax  accruing  under  this  act  has  not  been  paid  according  to 
law,  it  shall  issue  a  citation  citing  the  persons  interested  in 
the  property  liable  to  the  tax  to  appear  before  the  court  on 
a  day  certain,  not  more  than  three  months  after  the  date  of 
such  citation,  and  show  cause  why  said  tax  should  not  be 
paid.  The  service  of  such  citation  and  the  time,  manner  and 
proof  thereof,  and  fees  therefor,  and  the  hearing  and  deter- 
mination thereon,  and  the  enforcement  of  the  determination 
or  decree  shall  conform  to  the  provisions  of  the  Code  of  Civil 
Procedure,  for  the  service  of  citations  now  issuing  out  of 
surrogates'  courts,  and  the  hearing  and  determination  there- 
on and  its  enforcement.  And  the  surrogate,  or  clerk  of  the 
law  inher. — 28 


434  APPENDIX  OF  STATUTES.        [N.  Y.,I.  a. 

surrogate's  court,  shall,  upon  the  request  of  the  district-at- 
torney, treasurer  of  the  county,  or  comptroller  of  the  county 
of  New  York,  furnish,  without  fee,  one  or  more  transcripts 
of  such  decree  as  provided  in  section  twenty-five  hundred 
and  fifty-three  of  the  Code  of  Civil  Procedure,  and  the  same 
shall  he  docketed  and  filed  by  the  county  clerk  of  any  county 
in  the  state  without  fee,  in  the  same  manner,  and  with  the 
same  effect  as  provided  by  said  section  for  filing  and  docket- 
ing transcripts  of  decrees  of  such  courts. 

§  17.  Whenever  the  treasurer  or  comptroller  of  any  county 
shall  have  reason  to  believe  that  any  tax  is  due  and  unpaid 
under  this  act,  after  the  refusal  or  neglect  of  the  persons 
interested  in  the  property  liable  to  said  tax  to  pay  the  same, 
he  shall  notify  the  district-attorney  of  the  proper  county, 
in  writing,  of  such  failure  to  pay  such  tax,  and  the  district- 
attorney  so  notified,  if  he  have  probable  cause  to  believe  the 
tax  is  due  and  unpaid,  shall  prosecute  the  proceeding  in  the 
surrogate's  court  in  the  proper  county,  as  provided  in  section 
sixteen  of  this  act  for  the  enforcement  and  collection  of 
such  tax.  All  costs  awarded  by  such  decree,  that  may  be 
collected  after  the  collection  and  payment  of  the  tax,  to  the 
treasurer  or  comptroller  of  the  proper  county,  may  be  re- 
tained by  the  district-attorney,  for  his  own  use.  Such  costs 
shall  be  fixed  by  the  surrogate  in  his  discretion,  but  shall 
not  exceed  in  any  case  where  there  has  not  been  a  contest 
the  sum  of  $100,  or  where  there  has  been  a  contest  the  sum 
of  $250.      [As  amended  by  Laws  1892,  c.  168.] 

Quarterly  statements  of  surrogate  and  county  clerk. 

§  18.  The  surrogate  and  county  clerk  of  each  county  shall, 
every  three  months,  make  a  statement  in  writing  to  the 
county  treasurer  or  comptroller  of  his  county  of  the  prop- 
erty from  which  or  the  party  from  which  he  has  reason  to 
believe  a  tax  under  this  act  is  due  and  unpaid. 

Payment  of  certain  expenses  of  county  treasurer. 

§  19.  Whenever  the  surrogate  of  any  county  shall  certify 
that  there  was  probable  cause  for  issuing  a  citation  and  tak- 
ing the  proceedings  specified  in  section  seventeen  of  this 
act,  the  state  treasurer  shall  pay  or  allow  to  the  treasurer 
or  comptroller  of  any  county  all  expenses  incurred  for  serv- 
ices of  citation  and  his  other  lawful  disbursements  that  have 
not  otherwise  been  paid. 


N.  Y.,I.  a.]        APPENDIX  OF  STATUTES.  435 

Surrogate's  record,  what  to  contain. 

§  20.  The  comptroller  of  the  state  shall  furnish  to  each 
surrogate  a  book  in  which  he  shall  enter  the  returns  made 
by  appraisers,  the  cash  value  of  annuities,  life  estates  and 
terms  of  years  and  other  property  fixed  by  him,  and  the  tax 
assessed  thereon  and  the  amounts  of  any  receipts  for  pay- 
ments thereon  hied  with  him,  which  books  shall  be  kept  in 
the  office  of  the  surrogate  as  a  public  record. 

Payment  of  tax  to  state  treasurer—  Reports  thereon 
to  comptroller — Interest  upon  unpaid  amounts. 

>i  21.  The  treasurer  of  each  county  and  the  comptroller  of 
the  county  of  New  York  shall  collect  and  pay  the  state  treas- 
urer all  taxes  that  may  be  due  and  payable  under  this  act, 
who  shall  give  him  a  receipt  therefor,  of  which  collection 
and  payment  he  shall  make  a  report  under  oath  to  the  comp- 
troller on  the  first  Monday  in  March  and  September  of  each 
year,  stating  for  what  estate  paid,  and  in  such  form  and  con- 
taining such  particulars  as  the  comptroller  may  prescribe; 
and  for  all  such  taxes  collected  by  him  and  not  paid  to  the 
state  treasurer  by  the  first  day  of  October  and  April  of  each 
year  he  shall  pay  interest  at  the  rate  of  ten  per  cent,  per 
annum. 

Fees  of  county  treasurer  and  N.  Y.  City  comptrol- 
ler. 

§  22.  The  treasurer  of  each  county  and  the  comptroller  of 
the  city  and  county  of  New  York  shall  be  allowed  to  retain, 
on  all  taxes  paid  and  accounted  for  by  him  each  year  under 
this  act,  in  addition  to  his  salary  or  fees  now  allowed  by 
law,  five  per  cent,  on  the  first  fifty  thousand  dollars  so  paid 
and  accounted  for  by  him,  three  per  cent,  on  the  next  fifty 
thousand  dollars  so  paid  and  accounted  for  by  him,  and  one 
per  cent,  on  all  additional  sums  so  paid  and  accounted  for 
by  him. 

Receipt  from  county  treasurer,  &c,  as  to  payment 
of  tax,  how  recorded — "Collateral  tax"  record. 

§  23.  Any  person  or  body  politic  or  corporate  shall,  upon 
payment  of  the  sum  of  fifty  cents,  be  entitled  to  a  receipt 
from  the  county  treasurer  of  any  county,  or  comptroller  of 
the  county  of  New  York,  or  a  copy  of  the  receipt,  at  his 
option,  that  may  have  been  given  by  said  treasurer  or  comp- 
troller for  the  payment  of  any  tax  under  this  act,  to  be 


436  APPENDIX   OF  STATUTES.         [N.  Y.  ,1.  a. ,  b. 

sealed  with  the  seal  of  his  office,  which  receipt  shall  desig- 
nate on  what  real  property,  if  any,  of  which  any  decedent 
may  have  died  seized,  said  tax  has  been  paid,  and  by  whom 
paid,  and  whether  or  not  it  is  in  full  of  said  tax,  and  said 
receipt  may  be  recorded  in  the  clerk's  office  of  the  county  in 
which  said  property  is  situate,  in  a  book  to  be  kept  by  said 
clerk  for  such  purpose,  which  shall  be  labeled  "Collateral 
Tax." 

Uses  of  taxes  paid  and  how  applied — Repeal. 

§  24.  All  taxes  levied  and  collected  under  this  act,  shall 
be  paid  into  the  treasury  of  the  state,  for  the  uses  of  the 
state,  and  shall  be  applicable  to  the  payment  of  the  general 
expenses  of  the  state  government  and  to  such  other  pur- 
poses as  the  legislature  may  by  law  direct. 

§  25.  All  acts  and  parts  of  acts  inconsistent  with  the  pro- 
visions of  this  act  are  hereby  repealed;  but  this  act  shall 
apply  to  all  estates  of  deceased  persons  where  no  assess- 
ment of  the  tax  has  been  made  to  which  such  estate  or  es- 
tates are  liable  under  the  provisions  of  the  foregoing  act. 
[As  amended  by  Laws  1889,  c.  479.] 

§  26.  This  act  shall  take  effect  immediately. 

(b)  Laws  1890,  Ch.  553,  as  to  Charitable  Corporations. 

An  act  to  amend  chapter  one  hundred  and  ninety-one  of  the 
Laws  of  Eighteen  Hundred  and  Eighty-Nine,  entitled 
"An  act  to  limit  the  amount  of  property  to  be  held  by 
corporations  organized  for  other  than  business  pur- 
poses," and  relating  to  such  corporations. 

Approved  by  the  governor  June  7,  1S90.  Passed,  three- 
fifths  being  present. 

The  people  of  the  state  of  New  York,  represented  in  sen- 
ate and  assembly,  do  enact  as  follows: 

Section  1.  Chapter  one  hundred  and  ninety-one  of  the 
Laws  of  Eighteen  Hundred  and  Eighty-Nine, entitled  "An  act 
to  limit  the  amount  of  property  to  be  held  by  corporations 
organized  for  other  than  business  purposes,"  is  hereby 
amended  so  as  to  read  as  follows: 


N.  Y.,  I.  b.]       APPENDIX  OF  STATUTES.  437 

Amount  of  property  of  certain  corporations,  limited 
— Exemption  from  certain  taxation  and  collateral 
inheritance  act — Proviso. 

£  1.  Any  religious,  educational,  l>ible,  missionary,  tract, 
literary,  scientific,  benevolent  or  charitable  corporation,  or 
corporation  organized  for  the  enforcement  of  laws  relating 
to  children  or  animals,  or  for  hospital,  infirmary,  or  other 
than  business  purposes,  may  take  and  hold,  in  its  own  right 
or  in  trust  for  any  purpose  comprised  in  the  objects  of  its 
incorporation,  property  not  exceeding  in  value  three  million 
dollars,  or  the  yearly  income  derived  from  which  shall  not 
exceed  two  hundred  and  fifty  thousand  dollars,  not  with 
standing  the  provisions  of  any  special  or  general  act  here- 
tofore passed  or  certificate  of  incorporation  affecting  such 
corporations.  In  computing  the  value  of  such  property  no 
increase  in  value  arising  otherwise  than  from  improvements 
made  thereon,  shall  be  taken  into  account.  The  personal 
estate  of  such  corporations  shall  be  exempt  from  taxation, 
and  the  provisions  of  chapter  four  hundred  and  eighty-three 
of  the  Laws  of  Eighteen  Hundred  and  Eighty-Five,  entitled 
"An  act  to  tax  gifts,  legacies  and  collateral  inheritances  in 
certain  cases,"  and  the  acts  amendatory  thereof,  shall  not 
apply  thereto,  nor  to  any  gifts  to  any  such  corporation  by 
grant,  bequest  or  otherwise;  provided,  however,  that  this 
provision  shall  not  apply  to  any  moneyed  or  stock  corpora 
tion  deriving  an  income  or  profit  from  the  capital  or  other- 
wise, or  to  any  corporation  which  has  the  right  to  make 
dividends  or  to  distribute  profits  or  assets  among  its  mem- 
bers. 

Special  statutes  not  affected  hereby. 

§  -.  This  act  shall  not  affect  the  right  of  any  such  cor- 
poration to  take  and  hold  property  exceeding  in  value  the 
amount  specified  in  section  one  of  this  act,  provided  such 
right  is  conferred  upon  such  corporation  by  special  statute; 
nor  affect  any  statute  by  which  its  real  estate  is  exempt 
from  taxation. 

§  3.  This  act  shall  take  effect  immediately. 


438  APPENDIX    OF    STATUTES.  [N.  Y.,  I.  C. 


(c)  Laws  1892,  Ch.  169. 

An  act  to  amend  chapter  four  hundred  and  eighty-three 
of  the  Laws  of  Eighteen  Hundred  and  Eighty-Five,  en- 
titled "An  act  to  tax  gifts,  legacies  and  collateral  in- 
heritances in  certain  cases." 
Approved    by    the    governor   March    19,    1892.     Passed, 

three-fifths  being  present. 

The  people  of  the  state  of  New  York,  represented  in  sen- 
ate and  assembly,  do  enact  as  follows: 

Section  1.  Section  one  of  chapter  four  hundred  and 
eighty-three  of  the  Laws  of  Eighteen  Hundred  and  Eighty- 
Five  as  amended  by  chapter  seven  hundred  and  thirteen 
of  the  Laws  of  Eighteen  Hundred  and  Eighty-Seven  and 
as  further  amended  by  chapter  two  hundred  and  fifteen  of 
the  Laws  of  Eighteen  Hundred  and  Ninety-One  is  hereby 
amended  to  read  as  follows: 

Property  passing  by  will,  etc. 

§  1.  After  the  passage  of  this  act  all  property  which  shall 
pass  by  will  or  by  the  intestate  laws  of  this  state  from  any 
person  who  may  die  seized  or  possessed  of  the  same  while 
a  resident  of  this  state;  or,  if  the  decedent  was  not  a  resi- 
dent of  this  state  at  the  time  of  his  death,  which  property 
or  any  part  thereof  shall  be  within  this  state;  or  any 
interest  therein  or  income  therefrom,  which  shall  be  trans- 
ferred by  deed,  grant,  sale  or  gift  made  in  contemplation 
of  the  death  of  the  grantor  or  bargainor,  or  intended  to 
take  effect  in  possession  or  enjoyment  after  such  death, 
to  any  person  or  persons  or  to  any  body  politic  or  cor- 
porate in  trust  or  otherwise,  or  by  reason  whereof  any  per- 
son or  body  politic  or  corporate  shall  become  beneficially 
entitled  in  possession  or  expectancy  to  any  property  or 
the  income  thereof,  other  than  to  or  for  societies,  corpora- 
tions and  institutions  now  exempted  by  law  from  taxation, 
or  from  collateral  inheritance  tax,  shall  be  and  is  subject 
to  a  tax  at  the  rate  hereinafter  specified,  to  be  paid  to  the 
treasurer  of  the  proper  county,  and  in  the  county  of  New 
York,  to  the  comptroller  thereof,  for  the  use  of  the  state; 
and  all  heirs,  legatees,  devisees,  administrators,  executors 
and  trustees  shall  be  liable  for  any  and  all  such  taxes  until 
the   same  shall    have  been    paid  as    hereinafter    directed. 


N.  Y.,  I.  C,  d.]  APPENDIX    OF    STATUTES.  439 

When  the  beneficial  interest  to  any  personal  property  or 
income  therefrom  shall  pass  to  or  for  the  use  of  any  father, 
mother,  husband,  wife,  child,  brother,  sister,  wife  or  widow 
of  a  son,  or  the  husband  of  a  daughter,  or  any  child  or  chil- 
dren adopted  as  such  in  conformity  with  the  laws  of  the 
state  of  New  York,  or  to  any  person  to  whom  the  deceased, 
for  not  less  than  ten  years  prior  to  death,  stood  in  the 
mutually  acknowledged  relation  of  a  parent,  or  to  any 
lineal  descendant  born  in  lawful  wedlock;  in  every  such 
case  the  rate  of  such  tax  shall  be  one  dollar  on  every 
hundred  dollars  of  the  clear  market  value  of  such  prop- 
erty, and  at  and  after  the  same  rate  for  every  less  amount, 
provided  that  an  estate  which  may  be  valued  at  a  less 
sum  than  ten  thousand  dollars  shall  not  be  subject  to  any 
such  duty  or  tax;  but  if  such  beneficial  interest  is  to  or  in 
land  or  real  estate  in  this  state,  such  interest  shall  be  ex- 
empt from  taxation  under  this  section.  In  all  other  eases, 
the  rate  shall  be  five  dollars  on  each  and  every  hundred 
dollars  of  the  clear  market  value  of  all  property,  and  at  and 
after  the  same  rate  for  any  less  amount,  provided  that  an 
estate  which  may  be  valued  at  a  less  sum  than  five  hun- 
dred dollars  shall  not  be  subject  to  any  such  duty  or  tax, 
provided  further  that  any  property  heretofore  devised  or 
bequeathed  or  which  may  hereafter  be  devised  or  be- 
queathed to  any  person  who  is  a  bishop  or  to  any  religious 
corporation,  shall  be  exempted  from  and  not  be  subject  to 
the  provisions  of  this  act. 

§  2.  This  act  shall  take  effect  immediately. 


(d)  Laws  1892,  Ch.  443. 

Repealed  by  chapter  1S9.  Laws  1893,  §  3. 

An  act  to  amend  chapter  four  hundred  and  eighty-three  of 
the  Laws  of  Eighteen  Hundred  and  Eighty-Five,  enti- 
tled "An  act  to  tax  gifts,  legacies  and  collateral  inherit- 
ances in  certain  cases,  as  amended  by  chapter  seven 
hundred  and  thirteen  of  the  Laws  of  Eighteen  Hundred 
and  Eighty-Seven,  as  amended  by  chapter  three  hun- 
dred and  seven  of  the  Laws  of  Eighteen  Hundred  and 
Eighty-Nine,  as  amended  by  chapter  one  hundred  and 
sixty-seven  of  the  Laws  of  Eighteen  Hundred  and  Nine- 
ty-two." 
Approved  by  the  governor  May  3,  1S92.  Passed,  three- 
fifths  being  present. 


440  APPENDIX  OF  STATUTES.        [X.Y..L  d. 

The  people  of  the  state  of  Xew  York,  represented  in  sen- 
ate and  assembly,  do  enact  as  follows: 

Section  1.  Section  thirteen  of  chapter  four  hundred  and 
eighty-three  of  the  Laws  of  Eighteen  Hundred  and  Eighty- 
Five,  entitled  "An  act  to  tax  gifts,  legacies  and  collateral 
inheritances  in  certain  cases."  as  amended  by  chapter  seven 
hundred  and  thirti  en  of  the  Laws  of  Eighteen  Hundred  and 
Eighty-Seven,  as  amended  by  chapter  Three  hundred  and 
seven  of  the  Laws  of  Eighteen  Hundred  and  Eighty-Nine, 
as  amended  by  chapter  one  hundred  and  sixty-seven  of  the 
Laws  of  Eighteen  Hundred  and  Ninety-Two,  is  hereby 
amended  so  as  to  read  as  follows: 

Surrogate  to  appoint  appraiser. 

§  13.  In  order  to  fix  the  value  of  property  of  persons  whose 
estates  shall  be  subject  to  the  payment  of  said  tax,  the  sur- 
rogate, on  the  application  of  any  interested  party,  or  upon 
his  own  motion,  shall  appoint  some  competent  person  as 
appraiser  as  often  as.  and  whenever  occasion  may  require, 
whose  duty  it  shall  be  forthwith  to  give  such  notice  by  mail 
to  all  persons  known  to  have  or  claim  an  interest  in  such 
property,  and  to  such  persons  as  the  surrogate  may  by  order 
direct,  of  the  time  and  place  he  will  appraise  such  property; 
and  at  such  time  and  place,  to  appraise  the  same  at  its  fair 
market  value,  and  for  that  purpose  the  said  appraiser  is  au- 
thorized by  h-ave  of  the  surrogate  to  issue  subpoenas  for  and 
to  compel  the  attendance  of  witnesses  before  him,  and  to 
take  the  evidence  of  such  witnesses  under  oath  concern- 
in  ■_'  such  property  and  the  value  thereof,  and  he  shall  make 
a  report  thereof,  and  of  such  value,  in  writing  to  said  sur- 
rogate, together  with  the  depositions  of  the  witnesses  ex- 
amined and  such  other  facts  in  relation  thereto  and  to  said 
matter  as  said  surrogate  may  by  order  require,  to  be  filed  in 
the  office  of  such  surrogate:  and  from  this  report  the  said 
surrogate  shall  forthwith  assess  and  fix  the  then  cash  value 
of  all  estates,  annuities  and  lite  estates  or  terms  of  years 
growing  out  of  said  estate,  and  the  tax  to  which  the  same 
is  liable,  and  shall  immediately  give  notice  thereof  by  mail 
to  all  parties  known  to  be  interested  therein,  and  the  value 
of  every  future  or  contingent  or  limited  estate,  income  or 
interest  shall,  for  the  purposes  of  this  act,  be  determined  by 
the  rule,  method  and  standards  of  mortality  and  of  value, 
which  are  employed  by  the  superintendent  of  the  insurance 
department  in  ascertaining  the  value  of  policies  of  life  in- 
surance and  annuities,  for  the  determination  of  the  liabili- 
ties of  life  insurance  companies,  save  that  the  rate  of  inter- 


N.  Y  ,  I.  d.]       APPENDIX  OF  STATUTES.  441 

est  to  be  assessed  in  computing  the  present  value  of  all  fu- 
ture interests  and  contingencies  shall  be  five  per  centum 
per  annum;  and  thje  superintendent  of  the  insurance  de- 
partment shall,  on  the  application  of  any  surrogate,  deter- 
mine the  value  of  such  future  or  contingent  or  limited  es- 
tate, income  or  interest,  upon  the  facts  contained  in  such 
report,  and  certify  the  same  to  the  surrogate,  and  his  cer- 
tificate  shall  be  conclusive  evidence  that  the  method  of  com- 
putation adopted  therein  is  correct.  Any  person  or  persons 
dissatisfied  with  the  appraisement  or  assessment  may  ap- 
peal therefrom  to  the  surrogate  of  the  proper  county  within 
sixty  days  after  the  making  and  filing  of  such  assessment, 
on  paying  or  giving  security  approved  by  the  surrogate  to 
pay  all  costs,  together  with  whatever  tax  shall  be  fixed  by 
said  court.  The  said  appraiser  shall  be  paid  by  the  county 
treasurer  or  comptroller  out  of  any  funds  he  may  have  in 
his  hands  on  account  of  said  tax,  on  the  certificate  of  the 
surrogate,  at  the  rate  of  three  dollars  per  day  for  every  day 
actually  and  necessarily  employed  in  said  appraisement,  to- 
gether with  his  actual  and  necessary  traveling  expenses  in- 
cluding the  fees  paid  such  witnesses.  The  comptroller  of 
the  city  and  county  of  New  York  shall  retain  out  of  any 
funds  he  may  have  in  his  hands  on  account  of  said  tax.  a 
sum  of  money  sufficient  to  provide  the  surrogate  in  the  city 
and  county  of  New  York,  with  an  assistant  appointed  by 
said  surrogate,  who  shall  be  known  as  the  succession  tax 
assistant,  whose  salary  shall  be  four  thousand  dollars  a 
year ;  a  succession  tax  clerk  whose  salary  shall  be  two  thou- 
sand four  hundred  dollars  a  year;  an  assistant  clerk  whose 
salary  shall  be  one  thousand  eight  hundred  dollars  a  year. 
and  a  recording  clerk  whose  salary  shall  be  thirteen  hundred 
dollars  a  year,  said  salaries  to  be  payable  monthly;  and  a 
further  sum  of  money,  not  exceeding  five  hundred  dollars  a 
year,  to  be  used  to  pay  the  expenses  of  the  said  surrogate 
necessarily  incurred  in  the  assessment  and  collection  of  said 
tax.  said  amounts  to  be  paid  upon  the  certificates  and  requi- 
sitions of  said  surrogate  respectively.  The  county  treasurer 
of  the  county  of  Kings  shall  retain  out  of  any  funds  he  may 
have  in  his  hands  on  account  of  said  tax  a  sum  of  money 
sufficient  to  provide  the  surrogate  of  the  county  of  Kings 
with  a  clerk,  appointed  by  said  surrogate,  who  shall  be 
known  as  the  "inheritance  and  legacy  tax  clerk."  and  whose 
salary  shall  be  two  thousand  four  hundred  dollars  a  year, 
payable  monthly,  said  amount  to  be  paid  upon  the  certifi- 
cate of  said  surrogate. 

§  2.  This  act  shall  take  effect  immediately. 


442  APPENDIX    OF    STATUTES.  [N.  Y. ,  I.  C 

TRANSFER  TAX  ACT. 

(e)  Laws  1892,  Ch.  399,  with  Amendments  to  1895. 

Chap.  399. 
An  act  in  relation  to  taxable  transfers  of  property. 

Approved  by  the  governor  April  30,  1892.  Passed,  three- 
fifths  being  present. 

The  people  of  the  state  of  New  York,  represented  in  senate 
and  assembly,  do  enact  as  follows: 

TAXABLE  TRANSFERS  OF  PROPERTY. 

Section  1.    Taxable  Transfers. 

2.  Exceptions  and  Limitations. 

3.  Lien  of  Tax  and  Payment  Thereof. 

4.  Discount,  Interest  and  Penalty. 

5.  Collection  of  Tax  by  Executor,  Administrators  and  Trus- 

tees. 

6.  Refund  of  Tax  Erroneously  Paid. 

7.  Deferred  Payments. 

8.  Taxes  upon  Devisees  and  Bequests  in  Lieu  of  Commissions. 

9.  Liability  of  Certain  Corporations  to  Tax. 

10.  Jurisdiction  of  the  Surrogate. 

11.  Appointment  of  Appraisers. 

12.  Proceedings  by  Appraisers. 

13.  Determination  by  Surrogate. 

14.  Surrogate's  Assistants  in  New  York  City. 

15.  Proceedings  for  the  Collection  of  Taxes. 

16.  Receipt  from  the  County  Treasurer  and  Comptroller. 

17.  Fees  of  County  Treasurer  and  Comptroller. 

18.  Books  and  Forms  to  be  Furnished  by  the  State  Comptroller. 

19.  Reports  of  Surrogate  and  County  Clerk. 

20.  Reports  of  County  Treasurers  and  Comptrollers  of  the  City 

of  New  York. 

21.  Application  of  Taxes. 

22.  Definitions. 

23.  Laws  Repealed. 

24.  Saving  Clause. 

25.  Construction. 

26.  When  to  Take  Effect. 

Taxable  transfers. 

§  1.  A  tax  shall  be  and  is  hereby  imposed  upon  the  trans- 
fer of  any  property,  real  or  personal,  of  the  value  of  five 
hundred  dollars  or  over,  or  of  any  interest  therein  or  in- 
come therefrom,  in  trust  or  otherwise,  to  persons  or  corpora- 
tions not  exempt  by  law  from  taxation  on  real  or  personal 
property  in  the  following  cases: 

1.  When  the  transfer  is  by  will  or  by  the  intestate  laws 


N.  Y.,I.  C]  APPENDIX    OF    STATUTES.  443 

of  this  state  from  any  person  dying  seized  or  possessed  of 
the  property  while  a  resident  of  the  slate. 

2.  When  the  transfer  is  by  will  or  intestate  law,  of  prop- 
erty within  the  state,  and  the  decedent  was  a  nonresident 
of  the  state  at  the  time  of  his  death. 

3.  When  the  transfer  is  of  property  made  by  a  resident  or 
by  a  non-resident,  when  such  non-resident's  property  is  with- 
in this  state,  by  deed,  grant,  bargain,  sale  or  gift  made  in 
contemplation  of  the  death  of  the  grantor,  vendor,  or  donor; 
or  intended  to  take  effect,  in  possession  or  enjoyment, 
at  or  after  such  death.  Such  tax  shall  also  be  imposed 
when  any  such  person  or  corporation  becomes  beneficially 
entitled,  in  possession  or  expectancy,  to  any  property  or  the 
income  thereof  by  any  such  transfer,  whether  made  before 
or  after  the  passage  of  this  act.  Such  tax  shall  be  at  the 
rate  of  five  per  cent  upon  the  clear  market  value  of  such 
property,  except  as  otherwise  prescribed  in  the  next  section. 

Exceptions  and  limitations. 

§  2.  When  the  property  or  any  beneficial  interest  therein 
passes  by  any  such  transfer  to  or  for  the  use  of  any  father, 
mother,  husband,  wife,  child,  brother,  sister,  wife  or  widow 
of  a  son  or  the  husband  of  a  daughter,  or  any  child  or  chil- 
dren adopted  as  such  in  conformity  with  the  laws  of  this 
state,  of  the  decedent,  grantor,  donor  or  vendor,  or  to  any 
person  to  whom  any  such  decedent,  grantor,  donor  or  vendor 
for  not  less  than  ten  years  prior  to  such  transfer  stood  in 
the  mutually  acknowledged  relation  of  a  parent  or  to  any 
lineal  descendant  of  such  decedent,  grantor,  donor,  or  ven- 
dor born  in  lawful  wedlock;  such  transfer  of  property  shall 
not  be  taxable  under  this  act,  unless  it  is  personal  property 
of  the  value  of  ten  thousand  dollars  or  more,  in  which  case 
it  shall  be  taxable  under  this  act  at  the  rate  of  one  per 
centum  upon  the  clear  market  value  of  such  property.  But 
any  property  heretofore  or  hereafter  devised  or  bequeathed 
to  any  person  who  is  a  bishop  or  to  any  religious  corporation 
shall  be  exempted  from  and  not  subject  to  the  provisions  of 
this  act. 

Lien  of  tax  and  payment  thereof. 

§  3.  Every  such  tax  shall  be  and  remain  a  lien  upon  the 
property  transferred  until  paid,  and  the  person  to  whom 
the  property  is  so  transferred,  and  the  administrators,  exec- 
utors and  trustees  of  every  estate  so  transferred  shall  be 
personally  liable  for  such  tax  until  its  payment.     The  tax 


444  ATPENDIX    OF    STATUTES.  [N.  Y. ,  I.  6. 

shall  be  paid  to  the  treasurer  or  comptroller  of  the  county 
of  the  surrogate  having  jurisdiction  as  herein  provided;  and 
said  treasurer  or  comptroller  shall  give,  and  every  executor, 
administrator  or  trustee  shall  take  duplicate  receipts  from 
him  of  such  payment,  one  of  which  he  shall  immediately 
send  to  the  comptroller  of  the  state,  whose  duty  it  shall  be 
to  Charge  the  treasurer  or  comptroller  so  receiving  the  tax 
with  the  amount  thereof  and  to  seal  said  receipt  with  the 
seal  of  his  office  and  countersign  the  same  and  return  it  to 
the  executor,  administrator  or  trustee,  whereupon  it  shall 
be  a  proper  voucher  in  the  settlement  of  his  accounts;  but 
no  executor,  administrator  or  trustee  shall  be  entitled  to  a 
final  accounting  of  an  estate  in  settlement  of  which  a  tax 
is  due  under  the  provisions  of  this  act  unless  he  shall  pro- 
duce a  receipt  so  sealed  and  countersigned  by  the  com- 
troller  or  a  copy  thereof  certified  by  him,  or  unless  a  bond 
shall  have  been  filed  as  prescribed  by  section  seven  of  this 
act.  All  taxes  imposed  by  this  act  shall  be  due  and  payable 
at  the  time  of  the  transfer,  provided,  however,  that  taxes 
upon  the  transfer  of  any  estate,  property  or  interest  therein 
limited,  conditioned,  dependent  or  determinable  upon  'the 
happening  of  any  contingency  or  future  event  by  reason  of 
which  the  fair  market  value  thereof  cannot  be  ascertained 
at  the  time  of  the  transfer  as  herein  provided,  shall  accrue 
and  become  due  and  payable  when  the  persons  or  corpora- 
tions beneficially  entitled  thereto  shall  come  into  actual  pos- 
session or  enjoyment  thereof. 

Discount,  interest  and  penalty. 

§  4.  If  such  tax  is  paid  within  six  months  from  the  ac- 
cruing thereof,  a  discount  of  five  per  centum  shall  be  al- 
lowed and  deducted  therefrom.  If  such  tax  is  not  paid 
within  eighteen  months  from  the  accruing  thereof,  interest 
shall  be  charged  and  collected  thereon  at  the  rate  of  ten  per 
centum  per  annum  from  the  time  the  tax  accrued;  unless 
by  reason  of  claims  made  upon  the  estate  necessary  litiga- 
tion or  other  unavoidable  cause  of  delay,  such  tax  can  not 
be  determined  and  paid  as  herein  provided,  in  which  case 
interest  at  the  rate  of  six  per  centum  per  annum  shall  be 
charged  upon  such  tax  from  the  accrual  thereof  until  the 
cause  of  such  delay  is  removed,  after  which  ten  per  centum 
shall  be  charged.  In  all  cases  when  a  bond  shall  be  given 
under  the  provisions  of  section  seven  of  this  act  interest 
shall  be  charged  at  the  rate  of  six  per  cent,  fvoni  the  accrual 
of  the  tax  until  the  date  of  payment  thereof. 


N.  Y.,I.  U.]  APPENDIX    OF    STATUTES.  445 

Collection  of  tax  by  executors,  administrators  and 
trustees. 

§  5.  Every  executor,  administrator,  or  trustee  shall  have 
full  power  to  sell  so  much  of  the  property  of  tne  decedent  as 
will  enable  him  to  pay  such  tax  in  the  same  manner  as  he 
might  be  entitled  by  law  to  do  for  the  payment  of  the  debts 
of  the  testator  or  intestate.  Any  such  administrator,  exec- 
utor or  trustee  having  in  charge  or  in  trust  any  legacy  or 
property  for  distribution  subject  to  such  tax  shall  deduct 
the  tax  therefrom;  and  within  thirty  days  therefrom  shall 
pay  over  the  same  to  the  county  treasurer  or  comptroller,  as 
herein  provided.  If  such  legacy  or  property  be  not  in  money, 
he  shall  collect  the  tax  thereon  upon  the  appraised  value 
thereof  from  the  person  entitled  thereto.  He  shall  not  de- 
liver or  be  compelled  to  deliver  any  specific  legacy  or  prop- 
erty subject  to  tax  under  this  act,  to  any  person  until  he 
shall  have  collected  the  tax  thereon.  If  any  such  legacy 
shall  be  charged  upon  or  payable  out  of  real  property  the 
heir  or  devisee  shall  deduct  such  tax  therefrom  and  pay  it 
to  the  administrator,  executor  or  trustee,  and  the  tax  shall 
remain  a  lien  or  charge  on  such  real  property  until  paid,  and 
the  payment  thereof  shall  be  enforced  by  the  executor,  ad- 
ministrator or  trustee  in  the  same  manner  that  payment  of 
the  legacy  might  be  enforced,  or  by  the  district  attorney 
under  section  fifteen  of  this  act.  If  any  such  legacy  shall 
be  given  in  money  to  any  such  person  for  a  limited  period, 
the  administrator,  executor  or  trustee  shall  retain  the  tax 
upon  the  whole  amount,  but  if  it  be  not  in  money,  he  shall 
make  application  to  the  court  having  jurisdiction  of  an  ac- 
counting by  him,  to  make  an  apportionment,  if  the  case  re- 
quire it,  of  the  sum  to  be  paid  into  his  hands  by  such  leg- 
atees, and  for  such  further  order  relative  thereto  as  the  case 
may  require. 

Refund  of  tax  erroneously  paid. 

§  6.  If  any  debts  shall  be  proven  against  the  estate  of  a  dece- 
dent after  the  payment  of  any  legacy  or  distributive  share 
thereof,  from  which  any  such  tax  has  been  deducted  or  upon 
which  it  has  been  paid  by  the  person  entitled  to  such  legacy 
or  distributive  share  and  such  person  is  required  to  refund 
the  amount  of  such  debts  or  any  part  thereof,  an  equitable 
proportion  of  the  tax  shall  be  repaid  to  him  by  the  executor, 
administrator  or  trustee,  if  the  tax  has  not  been  paid  to  the 
county  treasurer,  comptroller  of  the  city  of  New  York  or  to 
the  state  treasurer,  or  by  such  treasurer,  comptroller,  or 


446  APPENDIX  OF  STATUTES.        [N.  Y.,I.  e. 

state  treasurer,  if  such  tax  has  been  paid  to  him.  When 
an}*  amount  of  said  tax  shall  have  been  paid  erroneously  into 
the  state  treasury,  it  shall  be  lawful  for  the  comptroller  of 
this  state,  upon  satisfactory  proof  presented  to  him  of  the 
facts,  to  require  the  amount  of  such  erroneous  or  illegal  pay- 
ment to  be  refunded  to  the  executor,  administrator,  trustee, 
person  or  persons  who  have  paid  any  such  tax  in  error  from 
the  treasury;  or  the  said  comptroller  may  by  order  direct 
and  allow  the  treasurer  of  any  county  or  the  comptroller 
of  the  city  of  New  York  to  refund  the  amount  of  any  illegal 
or  erroneous  payment  of  such  tax  out  of  the  funds  in  his 
hands  or  custody  to  the  credit  of  such  taxes,  and  credit 
himself  with  the  same  in  his  quarterly  account  rendered  to 
the  comptroller  of  this  state  under  this  act;  provided,  how- 
ever, that  all  applications  for  such  refunding  of  erroneous 
taxes  shall  be  made  within  five  years  from  the  payment 
thereof. 

Deferred  payment. 

§  7.  Any  person  or  corporation  beneficially  interested  in 
any  property  chargeable  with  a  tax  under  this  act  and  exec- 
utors, administrators  and  trustees  thereof,  may  elect  with- 
in one  year  from  the  date  of  the  transfer  thereof  as  herein 
provided  not  to  pay  such  tax  until  the  person  or  persons 
beneficially  interested  therein  shall  come  into  the  actual 
possession  or  enjoyment  thereof.  If  it  be  personal  prop- 
erty, the  person  or  persons  so  electing  shall  give  a  bond  to 
the  state  in  penalty  of  three  times  the  amount  of  any  such 
tax,  with  such  sureties  as  the  surrogate  of  the  proper 
county  may  approve,  conditioned  for  the  payment  of  such 
tax  and  interest  thereon,  at  such  time  or  period  as  the  per- 
son or  persons  beneficially  interested  therein  may  come  into 
the  actual  possession  or  enjoyment  of  such  property,  which 
bond  shall  be  filed  in  the  office  of  the  surrogate.  Such 
bond  must  be  executed  and  filed  and  a  full  return  of  such 
property  upon  oath  made  to  the  surrogate  within  one  year 
from  the  date  of  transfer  thereof  as  herein  provided,  and 
such  bond  must  be  renewed  every  five  years. 

Taxes  upon  devises  and  bequests  in  lieu  of  com- 
missions. 

§  8.  If  a  testator  bequeaths  or  devises  property  to  one  or 
more  executors  or  trustees  in  lieu  of  their  commissions  or 
allowances,  or  makes  them  his  legatees  to  an  amount  ex- 
ceeding   the    commissions    or    allowances    prescribed    by 


N.  Y.,  I.  e]  ATE'ENDIX    OF    STATUTES.  4-17 

law  for  an  executor  or  trustee,  the  excess  in  value  of  the 
property  so  bequeathed  or  devised,  above  the  amount  of 
commissions  or  allowances  prescribed  by  law  in  similar 
cases  shall  be  taxable  under  this  act. 

Liability  of  certain  corporations  to  tax. 

§  9.  If  a  foreign  executor,  administrator  or  trustee  shall 
assign  or  transfer  any  stock  or  obligations  in  this  state 
standing  in  the  name  of  a  decedent,  or  in  trust  for  a  dece- 
dent, liable  to  any  such  tax,  the  tax  shall  be  paid  to  the 
treasurer  of  the  proper  county  or  the  comptroller  of  the  city 
of  New  York  on  the  transfer  thereof.  Xo  safe  deposit  com- 
pany, bank  or  other  institution,  person  or  persons  holding 
securities  or  assets  of  a  decedent,  shall  deliver  or  transfer 
the  same  to  the  executors,  administrators  or  legal  represent- 
atives of  said  decedent  unless  notice  of  the  time  and  place 
of  such  intended  transfer  be  served  upon  the  county  treas- 
urer or  comptroller  at  least  live  days  prior  to  the  said  trans- 
fer. And  it  shall  be  lawful  for  the  said  county  treasurer 
or  comptroller,  personally  or  by  representative,  to  examine 
said  securities  or  assets  at  the  time  of  such  delivery  or 
transfer.  Failure  to  serve  such  notice  or  to  allow  such 
examination  shall  render  said  safe  deposit  company,  trust 
company,  bank  or  other  institution,  person  or  persons  liable 
to  the  payment  of  the  tax  due  upon  said  securities  or  assets 
in  pursuance  of  the  provisions  of  this  act. 

Jurisdiction  of  the  surrogate. 

§  10.  The  surrogate's  court  of  every  county  of  the  state 
having  jurisdiction  to  grant  letters  testamentary  or  of  ad- 
ministration upon  the  estate  of  a  decedent  whose  property 
is  chargeable  with  any  tax  under  this  act,  or  to  appoint  a 
trustee  of  such  estate  or  any  part  thereof,  or  to  give  ancil- 
lary letters  thereon,  shall  have  jurisdiction  to  hear  and  de- 
termine all  questions  arising  under  the  provisions  of  this 
act,  and  to  do  any  act  in  relation  thereto  authorized  by  law 
to  be  done  by  a  surrogate  in  other  matters  or  proceedings 
coming  within  his  jurisdiction;  and  if  two  or  more  surro- 
gates' courts  shall  be  entitled  to  exercise  any  such  jurisdic- 
tion, the  surrogate  first  acquiring  jurisdiction  hereunder 
shall  retain  the  same  to  the  exclusion  of  every  other  surro- 
gate. Every  petition  for  ancillary  letters  testamentary  or 
ancillary  letters  of  administration  made  in  pursuance  of  the 
provisions  of  article  seven,  title  three,  chapter  eighteen  of 
the  Code  of  Civil  Procedure  shall  set  forth  the  name  of  the 


448  APPENDIX  OF  STATUTES.        [N.  Y.,  I.  C. 

county  treasurer  or  comptroller  as  a  person  to  be  cited  as 
therein  prescribed,  and  a  true  and  correct  statement  of  all 
the  decedent's  property  in  this  state  and  the  value  thereof; 
and  upon  the  presentation  thereof  the  surrogate  shall  issue 
a  citation  directed  to  such  county  treasurer  or  comptroller; 
and  upon  the  return  of  the  citation  the  surrogate  shall  de- 
termine the  amount  of  the  tax  which  may  be  or  become  due 
under  the  provisions  of  this  act  and  his  decree  awarding  the 
letters  may  contain  any  provision  for  the  payment  of  such 
tax  or  the  giving  of  security  therefor  which  might  be  made 
by  such  surrogate  if  the  county  treasurer  or  comptroller 
were  a  creditor  of  the  decedent. 

Appointment  of  appraisers. 

§  11.  The  surrogate,  upon  the  application  of  any  interested 
party,  including  county  treasurers,  or  the  comptroller  of 
New  York  City,  or  upon  his  own  motion,  shall,  as  often  as 
and  whenever  occasion  may  require,  appoint  a  competent 
person  as  appraiser,  to  fix  the  fair  market  value,  at  the 
time  of  the  transfer  thereof,  of  property  of  persons  whose 
estates  shall  be  subject  to  the  payment  of  any  tax  im- 
posed by  this  act.  If  the  property  upon  the  transfer  of 
which  a  tax  is  imposed  shall  be  an  estate,  income  or  in- 
terest for  a  term  of  years,  or  for  life,  or  determinable  upon 
any  future  or  contingent  estate,  or  shall  be  a  remainder  or 
reversion  or  other  expectancy,  real  or  personal,  the  en- 
tire property  or  fund  by  which  such  estate,  income  or  in- 
terest is  supported,  or  of  which  it  is  a  part,  shall  be  ap- 
praised immediately  after  such  transfer,  or  as  soon  there- 
after as  may  be  practicable,  at  the  fair  and  clear  market 
value  thereof  at  that  time;  provided,  however,  that  when 
such  estate,  income  or  interest  shall  be  of  such  a  nature 
that  its  fair  and  clear  market  value  can  not  be  ascertained 
at  such  time,  it  shall  be  appraised  in  like  manner  at  the 
time  when  such  value  first  became  ascertainable.  The 
value  of  every  future,  or  contingent  or  limited  estate,  in- 
come, interest  or  annuity  dependent  upon  any  life  or  lives 
in  being  shall  be  determined  by  the  rule,  method  and  stand- 
ard of  mortality  and  value  employed  by  the  superintendent 
of  insurance  in  ascertaining  the  value  of  policies  of  life  in- 
surance and  annuities  for  the  determination  of  liabilities 
of  life  insurance  companies;  except  that  the  rate  of  inter- 
est for  computing  the  present  value  of  all  future  and  con- 
tingent interests  or  estates  shall  be  five  per  centum  per 
annum. 


N.  Y.,I.  e.]  APPENDIX    OF   STATUTES.  4-TJ 

Proceedings  by  appraisers. 

§  12.  Every  such  appraiser  shall  forthwith  give  notice 
by  mail  to  all  persons  known  to  have  a  claim  or  interest 
in  the  property  to  be  appraised,  including  the  county  treas- 
urer or  comptroller,  and  to  such  persons  as  the  surrogate 
may  by  ordei-  direct,  of  the  time  and  place  when  he  will 
appraise  such  property.  He  shall,  at  such  time  and  place, 
appraise  the  same  at  its  fair  market  value,  as  herein  pre- 
scribed, and  for  that  purpose  the  said  appraiser  is  author- 
ized to  issue  subpoenas  and  to  compel  the  attendance  of 
witnesses  before  him  and  to  take  the  evidence  of  such  wit- 
nesses under  oath  concerning  such  property  and  the  value 
thereof;  and  he  shall  make  report  thereof  and  of  such  value 
in  writing  to  the  said  surrogate,  together  with  the  deposi- 
tions of  the  witnesses  examined,  and  such  other  facts  in 
relation  thereto,  and  to  the  said  matter  as  said  surrogate 
may  order  or  require.  Every  appraiser  shall  be  paid  on 
the  certificate  of  the  surrogate  at  the  rate  of  three  dollars 
per  day  for  every  day  actually  and  necessarily  employed  in 
such  appraisal,  and  his  actual  and  necessary  traveling  ex- 
penses, and  the  fees  paid  such  witnesses,  wdiich  fees  shall 
be  the  same  as  those  now  paid  to  witnesses  subpoenaed  to 
attend  in  courts  of  record  by  the  county  treasurer  or  comp- 
troller out  of  any  funds  he  may  have  in  his  hands  on  ac- 
count of  any  tax  imposed  under  the  provisions  of  this  act. 

Determination  by  surrogate — Reappraiseinents. 

§  13.  The  report  of  the  appraiser  shall  be  filed  in  the  of- 
fice of  the  surrogate,  and  from  such  report  and  other  proof 
relating  to  any  such  estate  before  the  surrogate,  the  surro- 
gate shall  forthwith  as  of  course  determine  the  cash  value 
of  all  estates  and  the  amount  of  tax  to  which  the  same  are 
liable;  or,  the  surrogate  may  so  determine  the  cash  value  of 
all  such  estates  and  the  amount  of  tax  to  which  the  same 
are  liable  without  appointing  an  appraiser.  The  superin- 
tendent of  insurance  shall,  on  the  application  of  any  surro- 
gate, determine  the  value  of  any  such  future  or  contingent 
estates,  income  or  interest  limited,  contingent,  dependent  or 
determinable  upon  the  life  or  lives  of  persons  in  being,  upon 
the  facts  contained  in  any  such  appraiser's  report,  and  cer- 
tify the  same  to  the  surrogate,  and  his  certificate  shail  be 
conclusive  evidence  that  the  method  of  computation  adopt- 
ed therein  is  correct.  Any  person  dissatisfied  with  the  ap- 
praisement or  assessment  and  determination  of  tax,  may 

LAW  INHER. 29 


450  APPENDIX  OF  STATUTES.        [N.  Y.,  I.  e. 

appeal  therefrom  to  the  surrogate  within  sixty  days  from 
the  fixing,  assessing  and  determination  of  tax  by  the  surro- 
gate as  herein  provided,  upon  filing  in  the  office  of  the  sur- 
rogate a  written  notice  of  appeal,  which  shall  state  the 
grounds  upon  which  the  appeal  is  taken.  The  surrogate 
shall  immediately  give  notice,  upon  the  determination  by 
him  as  to  the  value  of  any  estate  which  is  taxable  under  this 
act,  and  of  the  tax  to  which  it  is  liable,  to  all  parties  known 
to  be  interested  therein. 

Within  two  years  after  the  entry  of  an  order  or  decree  of 
a  surrogate  determining  the  value  of  an  estate  and  assessing 
the  tax  thereon,  the  comptroller  of  the  state  may,  if  he  be- 
lieves that  such  appraisal,  assessment  or  determination  has 
been  fraudulently,  collusively,  or  erroneously  made,  make 
application  to  a  justice  of  the  supreme  court  of  the  judicial 
district  in  which  the  former  owner  of  such  estate  resided 
for  a  reappraisal  thereof.  The  justice  to  whom  such  appli- 
cation is  made  may  thereupon  appoint  a  competent  person 
to  reappraise  such  estate.  Such  appraiser  shall  possess  the 
powers,  be  subject  to  the  duties  and  receive  the  compensa- 
tion provided  by  sections  eleven  and  twelve  of  this  act. 
Such  compensation  shall  be  payable  by  the  county  treasurer 
or  comptroller  out  of  any  funds  he  may  have  on  account  of 
any  tax  imposed  under  the  provisions  of  this  act,  upon  the 
certificate  of  the  justice  appointing  him.  The  report  of 
such  appraiser  shall  be  filed  with  the  justice  by  whom  he 
was  appointed,  and  thereafter  the  same  proceedings  shall 
be  taken  and  had  by  and  before  such  justice  as  are  herein 
provided  to  be  taken  and  had  by  and  before  the  surrogate. 
The  determination  and  assessment  of  such  justice  shall  su- 
persede the  determination  and  assessment  of  the  surrogate, 
and  shall  be  filed  by  such  justice  in  the  office  of  the  state 
comptroller.      [As  amended  by  Laws  1895,  c.  556.] 

Surrogate's   and   District   Attorneys'    assistants    in 
New  York  City  and  Erie  County. 

§  14.  The  comptroller  of  the  city  and  county  of  New  York 
shall  retain  out  of  any  funds  he  may  have  in  his  hands  on 
account  of  said  tax  a  sum  of  money  sufficient  to  provide  the 
surrogates  in  the  city  and  county  of  New  York  with  an  as- 
sistant, appointed  by  said  surrogates,  who  shall  be  known  as 
the  transfer  tax  assistant,  whose  salary  shall  be  four  thou- 
sand dollars  a  year;  a  transfer  tax  clerk,  whose  salary  shall 
be  two  thousand  four  hundred  dollars  a  year;  an  assistant 
clerk,  whose  salary  shall  be  one  thousand  eight  hundred 


N.  Y.,I.  e.]  APPENDIX    OF    STATUTES.  451 

dollars  a  year,  and  a  recording  clerk  whose  salary  shall  be 
one  thousand  three  hundred  dollars  a  year,  said  salaries  to 
be  paid  monthly;  and  a  further  sum  of  money,  not  exceed- 
ing live  hundred  dollars  a  year,  to  be  used  to  pay  the  ex- 
penses of  the  said  surrogates  necessarily  incurred  in  the  as- 
sessment and  collection  of  said  tax,  said  amounts  to  be  paid 
upon  the  certificates  and  requisitions  of  said  surrogates  re- 
spectively. 

The  comptroller  of  the  city  and  county  of  New  York  shall 
also  retain,  out  of  any  funds  he  may  have  in  his  hands  on 
account  of  said  tax,  a  sum  of  money  sufficient  to  provide  the 
district  attorney  in  the  city  and  county  of  New  York  with 
an  assistant,  appointed  by  said  district  attorney,  who  shall 
be  known  as  the  transfer  tax  assistant,  whose  salary  shall 
be  three  thousand  dollars  a  year;  a  transfer  tax  clerk,  whose 
salary  shall  be  two  thousand  four  hundred  dollars  a  year. 
and  a  surrogate's  process  server,  whose  salary  shall  be  one 
thousand  two  hundred  dollars  a  year,  said  salary  to  be  pay- 
able monthly;  and  a  further  sum  of  money  not  exceeding- 
five  hundred  dollars  a  year,  to  be  used  to  pay  the  expenses 
of  the  said  district  attorney  for  the  conduct  and  prosecution 
of  the  proceedings  mentioned  in  section  fifteen  of  this  act, 
said  amounts  to  be  paid  upon  the  certificate  and  requisi- 
tion of  said  district  attorney.  The  county  treasurer  of  the 
county  of  Erie  shall  also  retain  out  of  any  funds  he  may 
have  in  his  hands  on  account  of  said  tax,  a  sum  of  money 
sufficient  to  provide  the  district  attorney  in  the  county  of 
Erie  with  an  assistant,  appointed  by  the  said  district  at- 
torney, who  shall  be  known  as  the  transfer  tax  assistant, 
whose  salary  shall  be  two  thousand  dollars  a  year,  said  sal- 
ary to  be  paid  monthly.  [As  amended  by  Laws  1895,  c.  515. 
See  Laws  1895,  c.  191,  amending  same  section;  also  Laws 
1S94,  c.  767.] 

Proceeding's  for  the  collection  of  taxes. 

§  15.  If  the  treasurer  or  comptroller  of  any  county  shall 
have  reason  to  believe  that  any  tax  is  due  and  unpaid  under 
this  act,  after  the  refusal  or  neglect  of  the  persons  liable 
therefor  to  pay  the  same,  he  shall  notify  the  district  attor- 
ney of  the  county,  in  writing,  of  such  failure  or  neglect,  and 
such  district  attorney,  if  he  have  probable  cause  to  believe 
that  such  tax  is  due  and  unpaid,  shall  apply  to  the  surro- 
gate's *court  for  a  citation,  citing  the  persons  liable  to  pay 
such  tax  to  appear  before  the  court  on  the  day  specified,  not 
more  than  three  months  after  the  date  of  such  citation,  and 


452  APPENDIX  OF  STATUTES.        [N.Y.,I.  e. 

show  cause  why  the  tax  should  not  be  paid.  The  surrogate 
upon  such  application,  and  whenever  it  shall  appear  to  him 
that  any  such  tax  accruing  under  this  act  has  not  been  paid 
as  required  by  law,  shall  issue  such  citation  and  the  service 
of  such  citation,  and  the  time,  manner  and  proof  thereof, 
and  the  hearing  and  determination  thereon  and  the  enforce- 
ment of  the  determination  or  order  made  by  the  surrogate 
shall  conform  to  the  provisions  of  the  Code  of  Civil  Proce- 
dure for  the  service  of  citations  out  of  the  surrogate's  court, 
and  the  hearing  and  determination  thereon  and  its  enforce- 
ment so  far  as  the  same  may  be  applicable.  The  surrogate 
or  his  clerk  shall  upon  request  of  the  district  attorney,  treas- 
urer or  comptroller  of  the  county,  furnish  without  fee  one 
or  more  transcripts  of  such  decree,  which  shall  be  docketed 
and  filed  by  the  county  clerk  of  any  county  of  the  state  with- 
out fee,  in  the  same  manner  and  with  the  same  effect  as 
provided  by  law  for  filing  and  docketing  transcripts  of  de- 
crees of  the  surrogate's  court.  The  costs  awarded  by  any 
such  decree  after  the  collection  and  payment  of  the  tax  to 
the  treasurer  or  comptroller  may  be  retained  by  the  district 
attorney  for  his  own  use.  Such  costs  shall  be  fixed  by  the 
surrogate  in  his  discretion,  but  shall  not  exceed  in  any  case 
where  there  has  not  been  a  contest  the  sum  of  one  hundred 
dollars,  or  where  there  has  been  a  contest  the  sum  of  two 
hundred  and  fifty  dollars.  Whenever  the  surrogate  shall 
certify  that  there  was  probable  cause  for  issuing  a  citation 
and  taking  the  proceedings  specified  in  this  section,  the  state 
treasurer  shall  pay  or  allow  to  the  treasurer  or  the  comptrol- 
ler of  the  county  all  expenses  incurred  for  the  service  of  cita- 
tions and  other  lawful  disbursements  not  otherwise  paid. 
In  proceedings  to  which  any  county  treasurer  or  comptroller 
is  cited  as  a  party  under  sections  eleven  and  twelve  of  this 
act,  the  state  comptroller  is  authorized  to  designate  and  re- 
tain counsel  to  represent  such  county  treasurer  or  comp- 
troller therein,  and  to  direct  such  county  treasurer  or  comp- 
troller to  pay  the  expenses  thereby  incurred,  out  of  the 
funds  which  may  be  in  his  hands  on  account  of  this  tax. 

And  the  comptroller  of  the  state  is  hereby  authorized, 
with  the  approval  of  the  attorney-general,  and  a  justice  of 
the  supreme  court  of  the  judicial  district  in  which  the  for- 
mer owner  resided  to  compromise  and  settle  the  amount  of 
such  tax  in  any  case  where  controversies  have  arisen  or 
may  hereafter  arise  as  to  the  relationship  of  the  beneficiaries 
to  the  former  owner  thereof.  [As  amended  by  chapter  378, 
Laws  1895.] 


N.  Y. ,  I.  e.]       APPENDIX  OF  STATUTES.  453 

Heceipt  from  the  county  treasurer  and  comptroller. 

§  16.  Any  person  shall  upon  the  payment  of  the  sum  of 
fifty  cents  be  entitled  to  a  receipt  from  the  county  treasurer 
of  any  county  or  the  comptroller  of  the  city  of  New  York, 
or  at  his  option  to  a  copy  of  a  receipt  that  may  have  been 
given  by  such  treasurer  or  comptroller  for  the  payment  of 
any  tax  under  this  act,  under  the  official  seal  of  such  treas- 
urer or  comptroller,  which  receipt  shall  designate  upon  what 
real  property,  if  any,  of  which  any  decedent  may  have  died 
seized,  such  tax  shall  have  been  paid,  by  whom  paid,  and 
whether  in  full  of  such  tax.  Such  receipt  may  be  recorded 
in  the  clerk's  office  of  the  county  in  which  such  property  is 
situate,  in  a  book  to  be  kept  by  him  for  that  purpose,  which 
shall  be  labelled  "transfer  tax." 

Fees  of  county  treasurer  and  comptroller. 

§  17.  The  treasurer  of  each  county  and  the  comptroller  of 
the  city  and  county  of  New  York,  shall  be  allowred  to  retain 
on  all  taxes  paid  and  accounted  for  by  him  each  year,  under 
this  act,  five  per  centum  on  the  first  fifty  thousand  dollars, 
three  per  centum  on  the  next  fifty  thousand  dollars,  and  one 
per  centum  on  all  additional  sums.  Such  fees  shall  be  in 
addition  to  the  fees  and  salaries  now  allowed  by  law  to  such 
officers,  except  that  in  the  counties  of  Erie  and  Monroe,  such 
per  centum  shall  be  credited  to  and  belong  to  the  county 
where  collected.      [As  amended  by  Laws  1893,  c.  701.] 

Books  and  forms  to  be  furnished  by  the  state  comp- 
troller. 

§  18.  The  comptroller  of  the  state  shall  furnish  to  each 
surrogate,  a  book,  which  shall  be  a  public  record,  and  in 
which  he  shall  enter  the  name  of  every  decedent,  upon  whose 
estate  an  application  to  him  has  been  made  for  the  issue  of 
letters  of  administration,  or  letters  testamentary,  or  ancil- 
lary letters,  the  date  and  place  of  death  of  such  decedent, 
the  estimated  value  of  his  real  and  personal  property,  the 
names,  places,  residences  and  relationship  to  him  of  his 
heirs  at  law,  the  names,  and  places  of  residence  of  the  leg- 
atees and  devises  in  any  will  of  any  such  decedent,  the 
amount  of  each  legacy  and  the  estimated  value  of  any  real 
property  devised  therein,  and  to  whom  devised.  These  en- 
tries shall  be  made  from  the  data  contained  in  the  papers 
filed  on  any  such  application,  or  in  any  proceeding  relating 
to  the  estate  of  the  decedent.      The  surrogate  shall  also  en- 


454  APPENDIX  OF  STATUTES.        [N.  Y.,I.  e. 

ter  in  such  book  the  amount  of  the  personal  property  of  any 
such  decedent,  as  shown  by  the  inventory  thereof  when  made 
and  filed  in  his  office,  and  the  returns  made  by  any  appraiser 
appointed  by  him  under  this  act,  and  the  value  of  annuities, 
life  estates,  terms  of  years  and  other  property  of  any  such 
decedent  or  given  by  him  in  his  will  or  otherwise,  as  fixed 
by  the  surrogate,  and  the  tax  assessed  thereon,  and  the 
amounts  of  any  receipts  for  payment  of  any  tax  on  the  es- 
tate of  such  decedent  under  this  act  filed  with  him.  The 
state  comptroller  shall  also  furnish  to  each  surrogate  forms 
for  the  reports  to  be  made  by  such  surrogate,  which  shall 
correspond  with  the  entries  to  be  made  in  such  book. 

Reports  of  surrogate  and  county  clerk. 

§  19.  Each  surrogate  shall,  on  January,  April,  July  and 
October  first  of  each  year,  make  a  report  in  duplicate,  upon 
the  forms  furnished  by  the  comptroller  containing  all  the 
data  and  matters  required  to  be  entered  in  such  book,  one 
of  which  shall  be  immediately  delivered  to  the  county  treas- 
urer or  comptroller  and  the  other  transmitted  to  the  state 
comptroller.  The  county  clerk  of  each  county  shall  at  the 
same  times  make  reports  in  duplicate,  containing  a  state- 
ment of  any  deed  or  other  conveyance  filed  or  recorded  in 
his  office  of  any  property,  which  appears  to  have  been  made 
or  intended  to  take  effect  in  possession  or  enjoyment  after 
the  death  of  the  grantor  or  vendor,  with  the  name  and  place 
of  residence  of  such  grantor  or  vendor,  the  name  and  place 
of  residence  of  the  grantee  or  vendee,  and  a  description  of 
the  property  transferred,  one  of  which  duplicates  shall  be 
immediately  delivered  to  the  county  treasurer  or  comptroller 
and  the  other  transmitted  to  the  state  comptroller. 

Reports  of  county  treasurer  and  of  the  comptroller 
of  the  city  of  New  York. 

§  20.  Each  county  treasurer  and  the  comptroller  of  the 
city  of  New  York  shall  make  a  report  under  oath  to  the  state 
comptroller,  on  January,  April,  July  and  October  first  of 
each  year,  of  all  taxes  received  by  him  under  this  act,  stat- 
ing for  what  estate  and  by  whom  and  when  paid.  The  form 
of  such  report  may  be  prescribed  by  the  state  comptroller. 
He  shall  at  the  same  time  pay  the  state  treasurer  all  taxes 
received  by  him  under  this  act  and  not  previously  paid  into 
the  state  treasury,  and  for  all  such  taxes  collected  by  him 
and  not  paid  into  the  state  treasury  within  thirty  days  from 
the  times  herein  required,  he  shall  pay  interest  at  the  rate 
of  ten  per  centum  per  annum. 


N.  Y.,I.  e.]       APPENDIX  OF  STATUTES.  455 

Application  of  taxes. 

§  21.  All  taxes  levied  and  collected  under  this  act  snail 
be  paid  into  the  treasury  of  the  state  for  the  use  of  the 
state,  and  shall  be  applicable  to  the  expenses  of  the  state  gov- 
ernment and  to  such  other  purposes  as  the  legislature  shall 
by  law  direct. 

Definitions. 

Ji  22.  The  words  "estate"  and  "property"  as  used  in  this 
act  shall  be  taken  to  mean 'the  property  or  interest  therein 
of  the  testator,  intestate,  grantor,  bargainor  or  vendor,  pass- 
ing or  transferred  to  those  not  herein  specifically  exempted 
from  the  provisions  of  this  act  and  not  as  the  property  or 
interest  therein  passing  or  transferred  to  individual  legatees, 
devisees,  heirs,  next  of  kin,  grantees,  donees  or  vendees,  and 
shall  include  all  property  or  interest  therein,  whether  situ- 
ated within  or  without  this  state,  over  which  this  state  has 
any  jurisdiction  for  the  purposes  of  taxation.  The  word 
"transfer"  as  used  in  this  act  shall  be  taken  to  include  the 
passing  of  property  or  any  interest  therein  in  possession  or 
enjoyment,  present  or  future,  by  inheritance,  descent,  devise, 
bequest,  grant,  deed,  bargain,  sale  or  gift  in  the  manner 
herein  prescribed.  The  words  "county  treasurer,"  "comp- 
troller" and  "district  attorney"  as  used  in  this  act  shall  be 
taken  to  mean  the  treasurer,  comptroller  or  district  attorney 
of  the  county  of  the  surrogate  having  jurisdiction  as  provid- 
ed in  section  ten  of  this  act. 

Laws  repealed. 

§  23.  Of  the  laws  enumerated  in  the  schedule  hereto  an- 
nexed, that  portion  specified  in  the  last  column  is  repealed. 
Such  repeal  shall  not  revive  a  law  repealed  by  any  law  here- 
by repealed,  but  shall  include  all  laws  amendatory  of  the 
laws  herebj'  repealed. 

Saving  clause. 

§  24.  The  repeal  of  a  law  or  any  part  of  it  specified  in  the 
annexed  schedule  shall  not  affect  or  impair  any  act  done,  or 
right  accruing,  accrued  or  acquired,  or  liability,  penalty,  for- 
feiture, or  punishment  incurred  prior  to  May  first,  eighteen 
hundred  and  ninety-two,  under  or  by  virtue  of  any  law  so 
repealed,  but  the  same  may  be  asserted,  enforced,  prosecut- 
ed or  inflicted  as  fully  and  to  the  same  extent  as  if  such  law 
had  not  been  repealed;  and  all  actions  and  proceedings, 
civil  or  criminal,  commenced  under  or  by  virtue  of  the  law 


45G  APPENDIX    OF    STATUTES.       [N.  Y.,I.  e. ,  f.  1. 

so  repealed  and  pending  on  April  thirtieth,  eighteen  hundred 
and  ninetv-two,  may  be  prosecuted  and  defended  to  final 
effect  in  the  same  manner  as  they  might  under  the  laws 
then  existing,  unless  it  shall  be  otherwise  specially  provided 
by  law. 

Construction. 

§  25.  The  provisions  of  this  act,  so  far  as  they  are  substan- 
tially the  same  as  those  of  laws  existing  on  April  thirtieth, 
eighteen  hundred  and  ninetj'-two,  shall  be  construed  as  a 
continuation  of  such  laws  modified  or  amended  according  to 
the  language  employed  in  this  act,  and  not  as  new  enact- 
ments. References  in  laws  not  repealed  to  provisions  of 
laws  incorporated  into  this  act  and  repealed,  shall  be  con- 
strued as  applying  to  the  provisions  so  incorporated.  Noth- 
ing in  this  act  shall  be  construed  to  amend  or  repeal  any 
provision  of  the  Criminal  or  Penal  Code. 

When  to  take  effect. 

§  20.  This  act  shall  take  effect  on  May  first,  eighteen  hun- 
dred and  ninety-two. 

Schedule  of  Laws  Repealed. 
Laws  of  Chapter  Sections. 

1885 483 All. 

1887 713 All. 

1889 307 All. 

1889 479 All. 

1891 215 All. 


(f)  Special  Acts. 

1.   Laws  1893,  Ch.  199. 

An  act  to  make  provision  for  the  collection,  in  the  county  of 
Kings,  of  the  tax  under  chapter  three  hundred  and  nine 
ty-nine  of  the  Laws  of  Eighteen  Hundred  and  Ninety- 
Two,  entitled  "An  act  in  relation  to  taxable  transfers  of 
property,"  by  authorizing  the  appointment  of  certain 
officers  and  making  provisions  for  the  salaries  thereof, 
and  for  the  payment  of  certain  expenses  incidental  to 
such  collection. 

Approved  by  the  governor  March  24,  1893.      Passed,  three 
fifths  being  present. 


N.  Y.,I.  f.  1.-3.]       APPENDIX    OF   STATUTES.  457 

The  people  of  the  state  of  New  York,  represented  in  senate 
and  assembly,  do  enact  as  follows: 

§  1.  The  county  treasurer  of  the  county  of  Kings  from  lime 
to  time  shall  retain  out  of  any  funds  which  he  may  have  in 
his  hands  on  account  of  the  taxes  collected  under  chapter 
three  hundred  and  ninety-nine  of  the  Laws  of  Eighteen  Hun- 
dred and  Ninety-Two,  entitled  "An  act  in  relation  to  taxa- 
ble transfers  of  property,"  such  sums  of  money  as  shall  be 
sufficient  to  provide  the  surrogate  of  the  county  of  Kings 
with  an  assistant  to  be  known  as  the  transfer  tax  assistant 
whose  salary  shall  be  four  thousand  dollars  a  year,  payable 
monthly,  and  a  transfer  tax  clerk  whose  salary  shall  be  two 
thousand  dollars  a  year,  payable  monthly,  and  which  said 
transfer  tax  assistant  and  transfer  lax  clerk  the  surrogate 
of  Kings  county  is  hereby  authorized  to  appoint  immedi- 
ately upon  the  passage  of  this  act.  And  the  said  county 
treasurer  shall  also  retain  out  of  said  funds  a  further  sum 
not  exceeding  five  hundred  dollars  in  any  one  year  for  the 
necessary  expenses  of  the  said  surrogate  incurred  in  the  as- 
sessment and  collection  of  said  tax.  The  said  salaries  and 
said  amount  shall  be  paid  upon  the  certificates  and  requisi- 
tions of  the  said  surrogate  respectively. 

§  2.  Chapter  four  hundred  and  forty  three  of  the  Laws 
of  Eighteen  Hundred  and  Ninety-Two  is  hereby  repealed. 

§  3.  This  act  shall  take  effect  immediately. 


2.  Section  48c,  Ch.  692,  Laws  1893,  p.  1725. 

Appraiser  taking  fee  or  reward. 

An  appraiser  appointed  by  virtue  of  the  taxable  transfers 
law,  who  takes  any  fee  or  reward  from  an  executor,  admin- 
istrator, trustee,  legatee,  next  of  kin,  or  heir  of  any  dece- 
dent, or  from  any  other  person  liable  to  pay  such  tax,  or  any 
portion  thereof,  is  guilty  of  a  misdemeanor. 

3.  Laws  1895,  Ch.  861. 

An  act  to  further  provide  for  the  collection  in  the  county 
of  Westchester  of  the  tax  under  the  act  relating  to  tax- 
able transfers  of  property  and  the  expenses  thereof. 

Became  a  law  June  1,  1895,  with  the  approval  of  the  gov- 
ernor.     Passed,  three-fifths  being  present. 


458  APPENDIX    OF    STATUTES.       [N.  Y. ,  I.  f.  3.,  4. 

The  people  of  the  state  of  New  York,  represented  in  sen- 
ate and  assembly,  do  enact  as  follows: 

§  1.  The  county  treasurer  of  Westchester  county  shall  an- 
nually retain  out  of  the  funds  which  may  come  into  his 
hands  on  account  of  the  tax  collected  under  chapter  three 
hundred  and  ninety-nine  of  the  Laws  of  Eighteen  Hundred 
and  Ninety-Two,  entitled  "An  act  in  relation  to  taxable 
transfers  of  property,"  and  the  acts  amendatory  thereof, 
sufficient  money  to  pay  the  salary  of  a  clerk  in  the  surro- 
gate's office  of  said  county,  to  be  known  as  the  "transfer  tax 
assistant,"  who  shall  be  appointed  by  and  at  pleasure  re- 
moved by  the  surrogate,  whose  compensation  shall  be  fixed 
by  said  surrogate,  not  to  exceed  two  thousand  dollars  a  year, 
payable  monthly. 

§  2.  This  act  shall  take  effect  immediately. 


4.   Laws  1891,  Ch.  34. 

An  act  in  reference  to  the  appraisal  of  the  estates  of  dece- 
dents and  others. 

Approved  by  the  governor,  February  25,  1891.  Passed, 
three-fifths  being  present. 

The  people  of  the  state  of  New  York,  represented  in  sen- 
ate and  assembly,  do  enact  as  follows: 

§  1.  Whenever  by  reason  of  the  provisions  of  any  law  of 
this  state  it  shall  become  necessary  to  appraise  in  whole  or 
in  part,  the  estate  of  any  deceased  person,  or  of  any  insol- 
vent estate  in  the  hands  of  a  receiver,  or  of  any  assignee  for 
the  benefit  of  creditors,  or  of  any  corporation  in  the  hands  of 
a  receiver  or  otherwise,  the  persons  whose  duty  it  shall  be  to 
make  such  appraisal  shall  value  the  real  estate  at  its  full 
and  true  value,  taking  into  consideration  actual  sales  of 
neighboring  real  estate  similarly  situated  during  the  year 
immediately  preceding  the  date  of  such  appraisal,  if  any: 
and  they  shall  value  all  such  property,  stocks,  bonds,  or 
securities  as  are  customarily  bought  or  sold  in  open  market 
in  the  city  of  New  York  or  elsewhere,  for  the  day  on  which 
such  appraisal  or  report  may  be  required,  by  ascertaining 
the  range  of  the  market  and  the  average  of  prices  as  thus 
found,  running  through  a  reasonable  period  of  time. 

§  2.  This  act  shall  take  effect  immediately. 


N.  J.,  II.  a.]  APPENDIX    OF    STATUTES.  459 


II.  NEW  JERSEY. 

(a)  Chapter  210,  Laws  1894,  P.  318,   Repealing  Chapter 
210,  Laws  1893,  and  Chapter  210,  Laws  1892. 

Chapter  CCX. 

An  act  to  tax  intestate  estates,  gifts,  legacies,  devises  and 
collateral  inheritance  in  certain  cases. 

1.  Be  it  enacted  by  the  senate  and  general  assembly  of  the 
state  of  New  Jersey,  that  after  the  passage  of  this  act  all 
property  which  shall  pass  by  will  or  by  the  intestate  laws 
of  this  state  from  any  person  wmo  may  die  seized  or  pos- 
sessed of  the  same  while  being  a  resident  of  the  state,  and 
all  property  which  shall  be  within  this  state,  and  any  part  of 
such  property,  and  any  interest  therein  or  income  therefrom, 
which  shall  be  transferred  by  inheritance,  distribution,  be- 
quest, devise,  deed,  grant,  sale  or  gift  as  aforesaid,  made  or 
intended  to  take  effect  in  possession  or  enjoyment  after  the 
death  of  the  intestate,  testator,  grantor  or  bargainor,  to  any 
person  or  persons,  or  to  a  body  politic  or  corporate  excepting 
churches,  hospitals  and  orphan  asylums,  public  libraries, 
Bible  and  tract  societies  and  all  religious,  benevolent  and 
charitable  institutions  and  organizations,  in  trust  or  other- 
wise, or  by  reason  whereof  any  person  or  body  politic  or  cor- 
porate shall  become  beneficially  entitled,  in  possession  or 
expectancy,  to  such  property,  or  to  the  income  thereof,  other 
than  to  or  for  the  use  of  a  father,  mother,  husband,  wife, 
children,  brother  or  sister,  or  lineal  descendants  born  in  law- 
ful wedlock,  or  the  wife  or  widow  of  a  son,  or  the  husband  of 
a  daughter,  shall  be  subject  to  a  tax  of  five  dollars  on  every 
hundred  dollars  of  the  clear  market  value  of  such  property, 
to  be  paid  to  the  treasurer  of  the  state  of  New  Jersey  for  the 
use  of  the  state,  and  all  administrators,  executors  and  trus- 
tees shall  be  liable  for  any  and  all  such  taxes  until  the  same 
shall  have  been  paid  as  hereinafter  directed;  provided,  that 
an  estate  which  may  be  valued  at  a  less  sum  than  five  hun- 
dred dollars  shall  not  be  subject  to  said  duty  or  tax. 

2.  And  be  it  enacted,  that  when  any  person  shall  bequeath 
or  devise,  convey,  grant,  sell  or  give  as  aforesaid  any  prop- 
erty, or  interest  therein,  or  income  therefrom,  to  a  father, 
mother,  husband,  wife,  children,  brother  or  sister,  the  widow 
of  a  son,  or  a  lineal  descendant,  during  life  or  for  a  term  of 


460  APPENDIX    OF   STATUTES.  [N.  J.,  II.  a. 

years,  and  the  remainder  to  a  collateral  heir  of  the  decedent, 
or  to  a  stranger  in  blood,  or  to  a  body  politic  or  corporate, 
the  property  so  passing-  shall  be  appraised  immediately  after 
the  death  of  said  testator  or  grantor,  as  the  case  may  be, 
at  what  shall  then  be  the  fair  market  value  thereof,  in  the 
manner  hereinafter  provided,  and  after  deducting  therefrom 
the  value  of  said  life  estate,  or  term  of  years,  the  tax  pre- 
scribed by  this  act  on  the  remainder  shall  be  immediately 
due  and  payable  to  the  treasurer  of  the  state  of  New  Jersey, 
and,  together  with  the  interest  thereon,  shall  be  and  remain 
a  lien  on  said  property  until  the  same  is  paid;  provided, 
that  the  person  or  persons,  or  body  politic  or  corporate  bene- 
ficially interested  in  the  property  chargeable  with  said  tax, 
may  elect  not  to  pay  the  same  until  they  shall  come  into  the 
actual  possession  or  enjoyment  of  such  property,  or,  and  in 
that  case,  such  person  or  persons,  or  body  politic  or  cor- 
porate, shall  give  a  bond  to  the  state  of  New  Jersey  in  a  pen- 
alty three  times  the  amount  of  the  tax  arising  upon  personal 
estate,  with  such  sureties  as  the  chancellor  may  approve, 
conditioned  for  the  payment  of  said  tax  and  interest  thereon, 
at  such  time  or  period  as  they  or  their  representatives  may 
come  into  the  actual  possession  or  enjoyment  of  such  prop- 
erty, which  bond  shall  be  filed  in  the  office  of  the  clerk  in 
chancery;  provided  further,  that  such  person  shall  make  a 
full  verified  return  of  such  property  to  the  chancellor  of  the 
state  and  file  the  same  in  the  office  of  the  clerk  in  chancery 
within  one  year  from  the  death  of  the  decedent,  and  within 
that  period  enter  into  such  security  and  renew  the  same 
every  five  years. 

3.  And  be  it  enacted,  that  whenever  a  decedent  appoints  or 
names  one  or  more  executors  or  trustees,  and  makes  a  be- 
quest or  devise  of  property  to  them  in  lieu  of  their  commis- 
sions or  allowances,  which  otherwise  would  be  liable  to  said 
tax,  or  appoints  them  his  residuary  legatees,  and  said  be- 
quest, devises  or  residuary  legacies  exceed  what  would  be  a 
reasonable  compensation  for  their  services,  such  excess  shall 
be  liable  to  said  tax,  and  the  chancellor  or  the  orphans'  court 
having  jurisdiction  in  the  case  shall  fix  such  compensation. 

4.  And  be  it  enacted,  that  all  taxes  imposed  by  this  act, 
unless  otherwise  herein  provided  for,  shall  be  due  and  pay- 
able at  the  death  of  the  testator,  grantor  or  intestate,  as  the 
case  may  be,  and  if  the  same  are  paid  within  one  year,  inter- 
est at  the  rate  of  six  per  centum  per  annum  shall  be  charged 
and  collected  thereon,  but  if  not  so  paid,  interest  at  the  rate 
of  ten  per  centum  per  annum  shall  be  charged  and  collected 


N.  J.,  II.  a.]       APPENDIX  OF  STATUTES.  461 

from  the  time  said  tax  accrued;  provided,  that  if  said  tax 
is  paid  within  nine  months  from  the  accruing  thereof,  inter- 
est shall  not  be  charged  or  collected  thereon,  hut  a  discount 
of  five  per  centum  shall  be  allowed  and  deducted  from  said 
tax;  and  in  all  cases  where  the  executors,  administrators  or 
trustees  do  not  pay  such  tax  within  one  year  from  the  death 
of  the  decedent,  they  shall  be  required  to  give  a  bond,  in  the 
form  and  to  the  effect  prescribed  in  section  two  of  this  act, 
for  the  payment  of  said  tax,  together  with  interest. 

5.  And  be  it  enacted,  that  the  penalty  of  ten  per  centum 
per  annum  imposed  by  section  four  hereof  for  the  non-pay- 
ment of  said  tax  shall  not  be  charged,  where  in  cases  by  rea- 
son of  claims  made  upon  the  estate,  necessary  litigation  or 
other  unavoidable  cause  of  delay,  the  estate  of  any  decedent, 
or  a  part  thereof,  cannot  be  settled  at  the  end  of  a  year  from 
the  death  of  the  decedent,  and  in  such  cases  only  six  per 
centum  per  annum  shall  be  charged  upon  the  said  tax  from 
the  expiration  of  such  year  until  the  cause  of  such  delay  is 
removed. 

6.  And  be  it  enacted,  that  any  administrator,  executor  or 
trustee  having  in  charge  or  trust  any  legacy  or  property 
for  distribution,  subject  to  the  said  tax,  shall  deduct  the 
tax  therefrom,  or  if  the  legacy  or  property  be  not  money, 
he  shall  collect  the  tax  thereon  upon  the  appraised  value 
thereof  from  the  legatee  or  person  entitled  to  such  prop- 
erty, and  he  shall  not  deliver,  or  be  compelled  to  deliver, 
any  specific  legacy  or  property  subject  to  tax  to  any  per- 
son until  he  shall  have  collected  the  tax  thereon;  and 
whenever  any  such  legacy  shall  be  charged  upon  or  payable 
out  of  real  estate,  the  heir  or  devisee,  before  paying  the 
same,  shall  deduct  said  tax  therefrom,  and  pay  the  same  to 
the  executor,  administrator  or  trustee,  and  the  same  shall 
remain  a  charge  on  such  real  estate  until  paid,  and  the  pay- 
ment thereof  shall  be  enforced  by  the  executor,  administra- 
tor or  trustee  in  the  same  manner  that  the  payment  of  such 
legacy  might  be  enforced ;  if,  however,  such  legacy  be  given 
in  money  to  any  person  for  a  limited  period,  he  shall  retain 
the  tax  upon  the  whole  amount,  but  if  it  be  not  in  money, 
he  shall  make  application  to  the  court  having  jurisdiction 
of  his  accounts,  to  make  an  apportionment,  if  the  case  re- 
quire it,  of  the  sum  to  be  paid  into  his  hands  by  such  leg- 
atees, and  for  such  further  order  relative  thereto  as  the 
case  may  require. 

7.  And  be  it  enacted,  that  all  executors,  administrators 
and  trustees  shall  have  full  power  to  sell  so  much  of  the 


462  APPENDIX  OF  STATUTES.       [N.  J.,  II.  a. 

property  of  the  decedent  as  will  enable  them  to  pay  said 
tax,  in  the  same  manner  as  they  may  be  enabled  by  law  to 
do  for  the  payment  of  debts  of  their  testators  and  intes- 
tates, and  the  amount  of  said  tax  shall  be  paid  as  herein- 
after directed. 

8.  And  be  it  enacted,  that  any  sum  of  money  retained  by 
any  executor,  administrator  or  trustee,  or  paid  into  his 
hands  for  any  tax  or  any  property,  shall  be  paid  by  him, 
within  thirty  days  thereafter,  to  the  treasurer  of  the  state 
of  New  Jersey;  and  the  said  treasurer  shall  deliver  a  receipt 
of  such  payment  to  the  comptroller  of  the  state,  whose  duty 
it  shajl  be  to  countersign  the  same  and  return  it  to  the  exec- 
utor, administrator  or  trustee,  whereupon  it  shall  be  a  prop- 
er voucher  in  the  settlement  of  his  accounts,  but  an  execu- 
tor, administrator  or  trustee  shall  not  be  entitled  to  credit 
in  his  accounts,  nor  to  be  discharged  from  liability  for  such 
tax  unless  he  shall  produce  a  receipt  so  countersigned  by 
the  comptroller,  or  a  copy  thereof  certified  by  him. 

9.  And  be  it  enacted,  that  whenever  any  of  the  real  estate 
of  which  any  decedent  may  die  seized  shall  pass  to  any  body, 
politic  or  corporate,  or  to  any  person  other  than  the  father, 
mother,  husband,  wife,  lawful  issue,  brother  or  sister,  wife 
or  widow  of  a  son,  or  husband  of  a  daughter,  or  in  trust  for 
them,  or  some  of  them,  it  shall  be  the  duty  of  the  executors, 
administrators  or  trustees  of  such  decedent  to  give  informa- 
tion thereof  in  writing  to  the  comptroller  of  the  state  with- 
in six  months  after  they  undertake  the  execution  of  their 
respective  duties,  or,  if  the  fact  be  not  known  to  them  with- 
in that  period,  then  within  one  month  after  the  same  shall 
have  come  to  their  knowledge. 

10.  And  be' it  enacted,  that  whenever  any  debts  shall  be 
proven  against  the  estate  of  a  decedent,  after  the  payment 
of  legacies  or  distribution  of  property  from  which  the  said 
tax  has  been  deducted,  or  upon  which  it  has  been  paid,  and 
a  refund  is  made  by  the  legatee,  devisee,  heir  or  next  of  kin, 
a  proportion  of  the  tax  so  paid  shall  be  repaid  to  him  by  the 
executor,  administrator  or  trustee,  if  the  said  tax  has  not 
been  paid  to  the  state  treasurer,  or  by  them  if  it  has  been 
so  paid. 

11.  And  be  it  enacted,  that  whenever  any  foreign  execu- 
tor or  administrator  shall  assign  or  transfer  any  stocks  or 
loans  in  this  state,  standing  in  the  name  of  a  decedent,  or 
in  trust  for  a  decedent,  which  shall  be  liable  to  the  said 
tax,  such  tax  shall  be  paid  to  the  state  treasurer  on  the 
transfer  thereof,  otherwise  the  corporation  permitting  such 


N.J.  ,11.  a.]  APPENDIX    OF   STATUTES.  463 

transfer  shall  become  liable  to  pay  Buch  tax;  provided,  thai 
such  corporation  has  knowledge  before  such  transfer  that 
said  stocks  or  loans  are  liable  to  said  tax. 

12.  And  be  it  enacted,  that  when  any  amount  of  said  tax 
shall  have  been  paid  erroneously  to  the  state  treasurer,  it 
shall  be  lawful  for  the  comptroller  of  the  treasury,  on  satis 
factory  proof  rendered  to  him  of  such  erroneous  payments, 
to  draw  his  warrant  on  the  state  treasurer,  in  favor  of  the 
executor,  administrator,  person  or  persons  who  have  paid 
any  such  tax  in  error,  or  who  may  be  lawfully  entitled  to 
receive  the  same,  for  the  amount  of  such  tax  so  paid  in  error: 
provided,  that  all  such  applications  for  the  repayment  of 
such  tax,  shall  be  made  within  two  years  from  the  date  of 
such  payment. 

13.  And  be  it  enacted,  that  in  order  to  fix  the  value  of 
property  of  persons  whose  estates  shall  be  subject  to  the 
payment  of  said  tax,  the  surrogate  or  register  of  the  pre- 
rogative court,  on  the  application  of  any  interested  party,  or 
upon  his  own  motion,  shall  appoint  some  competent  person 
as  appraiser  as  often  as  and  whenever  occasion  may  require, 
whose  duty  it  shall  be  forthwith  to  give  such  notice  by  mail, 
and  to  such  persons  as  the  surrogate  or  register  of  the  pre- 
rogative court  may  by  order  direct,  of  the  time  and  place  he 
will  appraise  such  property,  and  at  such  time  and  place  to 
appraise  the  same  at  its  fair  market  value,  and  make  a  re- 
port thereof  in  writing  to  said  surrogate  or  register  of  the 
prerogative  court,  together  with  such  other  facts  in  relation 
thereto  as  said  surrogate  or  register  of  the  prerogative  court 
may  by  order  require,  to  be  filed  in  the  office  of  such  surro- 
gate or  register  of  the  prerogative  court,  and  from  this  re- 
port the  said  surrogate  or  register  of  the  prerogative  court 
shall  forthwith  assess  and  fix  the  then  cash  value  of  all  es- 
tates, annuities  and  life  estates,  or  term  of  years  growing- 
out  of  said  estates,  and  the  tax  to  which  the  same  is  liable, 
and  shall  immediately  give  notice  thereof  by  mail  to  the 
state  comptroller  and  to  all  parties  known  to  be  interested 
therein;  any  person  or  persons  dissatisfied  with  said  ap- 
praisement or  assessment  may  appeal  therefrom  to  the  or- 
dinary or  orphans'  court  of  the  proper  county,  within  sixty 
days  after  the  making  and  filing  of  such  assessment,  on  pay- 
ing or  giving  security,  approved  by  the  ordinary  or  orphans' 
court,  to  pay  all  costs,  together  with  whatever  tax  shall  be 
fixed  by  said  court;  the  said  appraiser  shall  be  paid  by  the 
state  treasurer  on  the  warrant  of  the  comptroller,  on  the 
certificate  of  the  ordinary  or  surrogate,  duly  filed  with  the 


464  APPENDIX    OF   STATUTES.  [N.  J.,  II.  a. 

comptroller,  at  the  rate  of  three  dollars  per  day  for  every 
day  actually  and  necessarily  employed  in  said  appraisement, 
together  with  his  actual  and  necessary  travelling  expenses. 

14.  And  be  it  enacted,  that  any  appraiser  appointed  by  vir- 
tue of  this  act  who  shall  take  any  fee  or  reward  from  any 
executor,  administrator,  trustee,  legatee,  next  of  kin  or  heir 
of  any  decedent,  or  from  any  other  person  liable  to  pay  said 
tax  or  any  portion  thereof,  shall  be  guilty  of  a  misdemeanor, 
and  upon  conviction  in  any  court  having  jurisdiction  of  mis- 
demeanors he  shall  be  fined  not  less  than  two  hundred  and 
fifty  dollars  nor  more  than  five  hundred  dollars,  and  im- 
prisoned not  exceeding  ninety  days;  and  in  addition  thereto 
the  register  of  the  prerogative  court  or  surrogate  shall  dis- 
miss him  from  such  service. 

15.  And  be  it  enacted,  that  the  ordinary  or  the  orphans' 
court  in  the  county  in  which  the  real  propery  is  situate  of  a 
decedent  who  was  not  a  resident  of  the  state,  or  in  the  county 
of  which  the  decedent  was  a  resident  at  the  time  of  his 
death,  shall  have  jurisdiction  to  hear  and  determine  all  ques- 
tions in  relation  to  the  tax  arising  under  the  provisions  of 
this  act. 

10.  And  be  it  enacted,  that  if  it  shall  appear  to  the  regis- 
ter of  the  prerogative  court  or  surrogate  that  any  tax  accru- 
ing under  this  act  has  not  been  paid  according  to  law,  such 
officer  shall  issue  a  citation  citing  the  persons  interested  in 
the  property  liable  to  the  tax  to  appear  before  the  ordinary 
or  orphans'  court  on  a  day  certain,  not  more  than  three 
months  after  the  date  of  such  citation,  and  show  cause  why 
said  tax  should  not  be  paid;  the  service  of  such  citation 
and  the  time,  manner  and  proof  thereof  and  fees  therefor, 
and  the  hearing  and  determination  thereon,  and  the  enforce- 
ment of  the  determination  or  decree  shall  conform  to  the 
provisions  of  the  law  for  the  service  of  citations  now  issued 
by  the  ordinary  or  orphans'  court,  and  the  hearing  and  de- 
termination thereon  and  its  enforcement;  and  the  register 
of  the  prerogative  court  or  surrogate  shall,  upon  the  request 
of  any  prosecutor  of  the  pleas  or  the  state  comptroller,  fur- 
nish one  or  more  transcripts  of  such  decree,  and  the  same 
may  be  by  them  docketed  and  filed  by  the  county  clerk  of 
any  county  in  the  state,  and  the  same  shall  have  the  same 
effect  as  a  lien  by  judgment. 

17.  And  be  it  enacted,  that  whenever  the  state  comptroller 
shall  have  reason  to  believe  that  any  tax  is  due  and  unpaid 
under  this  act,  after  the  refusal  or  neglect  of  the  persons 
interested  in  the  property  liable  to  said  tax  to  pay  the  same, 


N.  J,  II.  a.]       APPENDIX  OF  STATUTES.  465 

he  shall  notify  the  prosecutor  of  the  pleas  of  the  proper 
county,  in  writing,  of  such  failure  to  pay  such  tax,  and  the 
prosecutor  of  the  pleas  so  notified,  if  he  have  probable  cause 
to  believe  a  tax  is  due  and  unpaid,  shall  prosecute  the  pro- 
ceeding before  the  ordinary  of  the  orphans'  court  in  the 
proper  county,  as  provided  in  section  sixteen  of  this  act,  for 
the  enforcement  and  collection  of  such  tax;  all  costs  award- 
ed by  such  decree  to  such  prosecutor  that  may  be  collected 
after  the  collection  and  payment  of  the  tax  to  the  state  treas- 
urer, may  be  retained  by  the  prosecutor  of  the  pleas  for  his 
own  use. 

18.  And  be  it  enacted,  that  the  register  of  the  prerogative 
court,  the  surrogate,  and  the  register  of  deeds  or  county  clerk 
of  each  county  shall  every  three  months  make  a  statement, 
in  writing,  to  the  state  comptroller  of  the  property  from 
which  or  the  party  from  whom  he  has  reason  to  believe  a  tax 
under  this  act  has  become  due  since  his  last  report. 

19.  And  be  it  enacted,  that  whenever  the  surrogate  of  any 
county,  or  the  register  of  the  prerogative  court,  shall  certify 
to  the  state  comptroller,  that  there  was  probable  cause  for 
issuing  a  citation  and  taking  the  proceedings  specified  in 
section  sixteen  of  this  act,  the  state  treasurer  shall  pay,  upon 
the  warrant  of  the  comptroller,  to  the  proper  officials  all  ex- 
penses incurred  for  the  issuing  and  services  of  the  citation 
and  all  other  lawful  disbursements  that  have  not  otherwise 
been  paid. 

20.  And  be  it  enacted,  that  the  comptroller  of  the  state 
shall  furnish  to  the  register  of  the  prerogative  court  and  to 
each  surrogate  a  book  in  which  he  shall  enter,  or  cause  to 
be  entered,  the  returns  made  by  appraisers,  the  cash  value 
of  annuities,  life  estates  and  term  of  years,  and  other  prop- 
erty fixed  by  him,  and  the  tax  assessed  thereon,  and  the 
amounts  of  any  receipts  for  payments  thereon  filed  with 
him,  which  books  shall  be  kept  in  the  ofiice  of  the  register  of 
the  prerogative  court  or  the  surrogate  as  a  public  record, 
and  shall  furnish  all  other  forms  and  blanks  necessary 
for  use  in  the  proper  enforcement  of  this  law. 

21.  And  be  it  enacted,  that  in  addition  to  the  fees  above 
mentioned  the  fees  of  the  surrogates  for  each  county  for  the 
duties  heretofore  or  hereafter  to  be  performed  by  them  in 
each  estate  under  this  act  or  any  act  heretofore  passed  shall 
be  paid  by  the  state  treasurer  upon  the  warrant  of  the 
comptroller,  and  shall  not  exceed  the  following  rates:  On 
all  sums  paid  to  the  state  treasurer,  not  exceeding  three 

law  inher. — 30 


466  APPENDIX    OF    STATUTES.  [N.  J.  ,  II.  a. 

thousand  dollars,  five  per  centum;   if  over  three  thousand 
dollars,  three  per  centum  on  such  excess. 

22.  And  be  it  enacted,  that  any  person  or  body  politic  or 
corporate  shall  be  entitled  to  a  receipt  from  the  state  treas- 
urer, countersigned  by  the  state  comptroller,  for  the  pay- 
ment of  any  tax  paid  under  this  act,  which  receipt  shall 
designate  on  what  real  property,  if  any,  of  which  any  dece- 
dent may  have  died  seized,  said  tax  has  been  paid  and  by 
whom  paid,  and  whether  or  not  it  is  in  full  of  said  tax,  and 
said  receipt  may  be  recorded  in  the  clerk's  office  of  the 
county  in  which  said  property  is  situate,  in  a  book  to  be  kept 
by  said  clerk  for  such  purpose,  which  shall  be  labeled  "Col- 
lateral Tax." 

23.  And  be  it  enacted,  that  all  acts  or  parts  of  acts  incon- 
sistent with  the  provisions  of  this  act  are  hereby  repealed, 
except  so  far  as  herein  re-enacted;  but  nothing  in  this  re- 
pealer shall  affect  or  impair  the  lien  of  any  taxes  heretofore 
assessed,  or  due  and  payable,  or  any  remedies  for  the  collec- 
tion of  the  same,  or  to  surrender  any  remedies,  powers, 
rights,  or  privileges  acquired  by  the  state  under  any  act 
heretofore  passed,  or  to  relieve  any  person  or  corporation 
from  any  penalty  imposed  by  said  acts;  provided,  however, 
that  the  exception  in  the  first  section  hereof  in  favor  of 
churches,  hospitals,  orphan  asylums,  public  libraries,  Bible 
and  tract  societies,  and  all  religious,  benevolent  and  chari- 
table institutions  and  organizations,  shall  be  construed  and 
held  to  apply  to  any  and  all  bequests,  devises  and  legacies 
heretofore  made,  in  trust  or  otherwise,  to  or  in  favor  of  such 
institutions,  or  any  of  them,  in  all  cases  where  said  tax  shall 
not  have  been  paid  prior  to  the  passage  of  this  act. 

24.  And  be  it  enacted,  that  this  act  shall  take  effect  im- 
mediately. 

Approved  May  15,  1894. 


Pa.,  III.  a.]  APPENDIX   OF  STATUTES.  467 

III.  PENNSYLVANIA. 

(a)  Laws  1887,  No.  37,  P.  79. 

An  act  to  provide  for  the  better  collection  of  collateral  in- 
heritance taxes. 

Designation  of  estates  subject  to  the  payment  of 
collateral  inheritance  tax  —  Owners,  executors, 
&c,  only  to  be  discharged  by  payment — Estates 
of  less  than  $250  not  to  be  subject  to  tax. 

§  1.  Be  it  enacted  by  the  senate  and  house  of  representa- 
tives of  the  commonwealth  of  Pennsylvania  in  general  as- 
sembly met,  and  it  is  hereby  enacted  by  the  authority  of  the 
same,  that  all  estates,  real,  personal  and  mixed,  of  every 
kind  whatsoever,  situated  within  this  state,  whether  the  per- 
son or  persons  dying  seized  thereof  be  domiciled  within  or 
out  of  this  state,  and  all  such  estates  situated  in  another 
state,  territory,  or  country,  when  the  person,  or  persons,  dy- 
ing seized  thereof  shall  have  their  domicile,  within  this  com- 
monwealth, passing  from  any  person,  who  may  die  seized  or 
possessed  of  such  estates,  either  by  will,  or  under  the  intes- 
tate laws  of  this  state,  or  any  part  of  such  estate,  or  estates, 
or  interest  therein,  transferred  by  deed,  grant,  bargain,  or 
sale,  made  or  intended  to  take  effect,  in  possession  or  enjoy- 
ment after  the  death  of  the  grantor,  or  bargainer  to  any 
person,  or  persons,  or  to  bodies  corporate  or  politic,  in  trust 
or  otherwise,  other  than  to  or  for  the  use  of  father,  mother, 
husband,  wife,  children  and  lineal  descendants  born  in  law- 
ful wedlock,  or  the  wife  or  widow  of  the  son  of  the  person 
dying  seized  or  possessed  thereof,  shall  be  and  they  are 
hereby  made  subject  to  a  tax  of  five  dollars  on  every  hun- 
dred dollars  of  the  clear  value  of  such  estate  or  estates,  and 
at  and  after  the  same  rate  for  any  less  amount,  to  be  paid 
to  the  use  of  the  commonwealth ;  and  all  owners  of  such  es- 
tates, and  all  executors  and  administrators  and  their  sure- 
ties shall  only  be  discharged  from  liability  for  the  amount 
of  such  taxes  or  duties,  the  settlement  of  which  they  may 
be  charged  with,  by  having  paid  the  same  over  for  the  use 
aforesaid,  as  hereinafter  directed:  provided,  that  no  estate 
which  may  be  valued  at  a  less  sum  than  two  hundred  and 
fifty  dollars  shall  be  subject  to  the  duty  or  tax. 


468  APPENDIX  OF  statutes.  [Pa. ,  III.  a. 

Executors,  accepting  bequests,  &c,  in  lieu  of  com- 
missions, to  pay  tax  on  amount  above  a  fair 
compensation — Rate  of,  to  be  fixed  by  the  court. 

§  2.  Where  a  testator  appoints  or  names  one  or  more  ex- 
ecutors and  makes  a  bequest  or  devise  of  property  to  them, 
in  lieu  of  their  commissions  or  allowances,  or  appoints  them 
his  residuary  legatees,  and  said  bequests,  devises,  or  resid- 
uary legacies  exceed  what  wrould  be  a  fair  compensation  for 
their  services,  such  excess  shall  be  subject  to  the  payment 
of  the  collateral  inheritance  tax;  the  rate  of  compensation 
to  be  fixed  by  the  proper  courts  having  jurisdiction  in  the 
case. 

Persons  entitled  to  reversionary  interests  need  not 
pay  tax  nor  be  chargeable  with  interest  thereon 
until  actual  possession  is  acquired — Tax  to  be  as- 
sessed upon  value  at  time  possession  begins — 
Tax  may  be  paid  before  possession  is  had.  Basis 
of  assessment — Tax  to  remain  a  lien  until  paid — 
Return  of  personal  estate — Security. 

§  3.  In  all  cases  where  there  has  been  or  shall  be  a  devise, 
descent  or  bequest  to  collateral  relatives  or  strangers,  liable 
to  the  collateral  inheritance  tax,  to  take  effect  in  possession, 
or  come  into  actual  enjoyment  after  the  expiration  of  one 
or  more  life  estates,  or  a  period  of  years,  the  tax  on  such 
estate  shall  not  be  payable,  nor  interest  begin  to  run  there- 
on, until  the  person  or  persons  liable  for  the  same  shall  come 
into  actual  possession  of  such  estate,  by  the  termination  of 
the  estates  for  life  or  years,  and  the  tax  shall  be  assessed 
upon  the  value  of  the  estate  at  the  time  the  right  of  posses- 
sion accrues  to  the  owner  as  aforesaid:  provided,  that  the 
owner  shall  have  the  right  to  pay  the  tax  at  any  time  prior 
to  his  coming  into  possession,  and  in  such  cases,  the  tax  shall 
be  assessed  on  the  value  of  the  estate  at  the  time  of  the 
payment  of  the  tax,  after  deducting  the  value  of  the  life  es- 
tate or  estates  for  years:  and  provided  further,  that  the  tax 
on  real  estate  shall  remain  a  lien  on  the  real  estate  on  which 
the  same  is  chargeable  until  paid.  And  the  owner  of  any 
personal  estate  shall  make  a  full  return  of  the  same  to  the 
register  of  wills  of  the  proper  county  within  one  year  from 
the  death  of  the  decedent,  and  within  that  time  enter  into 
security  for  the  payment  of  the  tax  to  the  satisfaction  of 
such  register;  and  in  case  of  failure  so  to  do,  the  tax  shall 
be  immediately  payable  and  collectible. 


Pa.,  III.  a.]        APPENDIX  OF  STATUTES.  460 

When  discount  of  5  per  cent,  is  to  be  allowed — 
When  interest  of  12  per  cent,  to  be  charged — 
When  only  6  per  cent,  interest — When  interest 
need  not  exceed  interest  made  by  estate. 

§  4.  If  the  collateral  inheritance  tax  shall  be  paid  within 
three  months  after  the  death  of  the  decedent,  a  discount  of 
five  per  centum  shall  be  made  and  allowed;  and  if  the  said 
tax  is  not  paid  at  the  end  of  one  year  from  the  death  of  the 
decedent,  interest  shall  then  be  charged  at  the  rate  of  twelve 
per  centum  per  annum  on  such  tax;  but  where  from  claims 
made  upon  the  estate,  litigation,  or  other  unavoidable  cause 
of  delay,  the  estate  of  any  decedent  or  a  part  thereof  cannot 
be  settled  up  at  the  end  of  the  year  from  his  or  her  decease, 
six  per  centum  per  annum  shall  be  charged  upon  the  collat- 
eral inheritance  tax,  arising  from  the  unsettled  part  thereof, 
from  the  end  of  such  year  until  there  be  default:  provided 
further,  that  where  real  or  personal  estate  withheld  by  rea- 
son of  litigation  or  other  cause  of  delay  in  manner  aforesaid 
from  the  parties  entitled  thereto,  subject  to  said  tax,  has  not 
been,  or  shall  not  be  productive  to  the  extent  of  six  per 
centum  per  annum,  they  shall  not  be  compelled  to  pay  a 
greater  amount  as  interest  to  the  commonwealth  than  they 
may  have  realized,  or  shall  realize  from  such  estate  during 
the  time  the  same  has  been  or  shall  be  withheld  as  aforesaid. 

Executors,  &c,  to  deduct  tax  from  pecuniary 
legacy  or  share — To  demand  payment  on  specific 
legacy — Money  due  state  to  be  promptly  paid. 

§  5.  The  executor,  or  administrator,  or  other  trustee,  paying 
any  legacy  or  share  in  the  distribution  of  any  estate,  subject 
to  the  collateral  inheritance  tax,  shall  deduct  therefrom  at 
the  rate  of  five  dollars  in  every  hundred  dollars,  upon  the 
whole  legacy  or  sum  paid ;  or  if  not  money,  he  shall  demand 
payment  of  a  sum,  to  be  computed  at  the  same  rate,  upon  the 
appraised  value  thereof,  for  the  use  of  the  commonwealth; 
and  no  executor  or  administrator  shall  be  compelled  to  pay 
or  deliver  any  specific  legacy  or  article  to  be  distributed, 
subject  to  tax,  except  on  the  payment  into  his  hands  of  a 
sum  computed  on  its  value  as  aforesaid;  and  in  case  of  neg- 
lect or  refusal  on  the  part  of  said  legatee  to  pay  the  same, 
such  specific  legacy  or  article,  or  so  much  thereof  as  shall 
be  necessary,  shall  be  sold  by  such  executor  or  administra- 
tor at  public  sale,  after  notice  to  such  legatee,  and  the  bal- 
ance that  may  be  left  in  the  hands  of  the  executor  or  admin- 


470  appendix  of  statutes.  [Pa.,  III.  a. 

istrator  shall  be  distributed,  as  is  or  may  be  directed  by  law ; 
and  every  sum  of  money  retained  by  any  executor  or  admin- 
istrator, or  paid  into  his  hands  on  account  of  any  legacy  or 
distributive  share,  for  the  use  of  the  commonwealth,  shall 
be  paid  by  him  without  delay. 

Provision  where  legacy  is  given  for  limited  period 
upon  a  condition  or  contingency. 

§  6.  If  the  legacy  subject  to  collateral  inheritance  tax  be 
given  to  any  person  for  life,  or  for  a  term  of  years,  or  for 
any  other  limited  period,  upon  a  condition  or  contingency,  if 
the  same  be  money,  the  tax  thereon  shall  be  retained  upon 
the  whole  amount;  but  if  not  money,  application  shall  be 
made  to  the  orphans'  court  having  jurisdiction  of  the  ac- 
counts of  the  executors  or  administrators  to  make  appor- 
tionment, if  the  case  requires  it,  of  the  sum  to  be  paid  by 
such  legatees,  and  for  such  further  order  relative  thereto  as 
equity  shall  require. 

Rule  -where  legacy  is  charged  upon  real  estate. 

§  7.  Whenever  such  legacy  shall  be  charged  upon  or  pay- 
able out  of  real  estate,  the  heir  or  devisee,  before  paying  the 
same,  shall  deduct  therefrom  at  the  rate  aforesaid,  and  pay 
the  amount  so  deducted  to  the  executor,  and  the  same  shall 
remain  a  charge  upon  such  real  estate  until  paid,  and  the 
payment  thereof  shall  be  enforced  by  the  decree  of  the  or- 
phans' court,  in  the  same  manner  as  the  payment  of  such 
legacy  may  be  enforced. 

Duty  of  executors,  &c.,  as  regards  real  estate. 

§  8.  Whenever  any  real  estate  of  which  any  decedent  may 
die  seized  shall  be  subject  to  the  collateral  inheritance  tax, 
it  shall  be  the  duty  of  executors  and  administrators  to  give 
information  thereof  to  the  register  of  the  county,  where  ad- 
ministration has  been  granted,  within  six  months  after  they 
undertake  the  execution  of  their  respective  duties,  or  if  the 
fact  be  not  known  to  them  within  that  period,  within  one 
month  after  the  same  shall  have  come  to  their  knowledge, 
and  it  shall  be  the  duty  of  the  owners  of  such  estate,  imme- 
diately upon  the  vesting  of  the  estate,  to  give  information 
thereof  to  the  register  having  jurisdiction  of  the  granting  of 
administration. 


Pa.,  III.  a  ]  APPENDIX    OF    STATUTES.  471 

Executors,  &c,  to  take  receipts. 

§  9.  It  shall  be  the  duty  of  any  executor  or  administrator, 
on  the  payment  of  collateral  inheritance  tax,  to  take  dupli- 
cate receipts  from  the  register,  one  of  which  shall  be  for- 
warded forthwith  to  the  auditor-general,  whose  duty  it  shall 
be  to  charge  the  register  receiving  the  money  with  the 
amount,  and  seal  with  the  seal  of  his  office,  and  counter- 
sign the  receipt  and  transmit  it  to  the  executor  or  adminis- 
trator, whereupon  it  shall  be  a  proper  voucher  in  the  settle- 
ment of  the  estate ;  but  in  no  event  shall  an  executor  or  ad- 
ministrator be  entitled  to  a  credit  in  his  account  by  the  reg- 
ister, unless  the  receipt  is  so  sealed  and  countersigned  by 
the  auditor-general. 

Foreign  executors  to  pay  tax  on  stocks. 

§  10.  Whenever  any  foreign  executor,  or  administrator, 
or  trustee,  shall  assign  or  transfer  any  stocks  or  loans  in  this 
commonwealth,  standing  in  the  name  of  the  decedent,  or  in 
trust  for  a  decedent,  which  Shall  be  liable  for  the  collateral 
inheritance  tax,  such  tax  shall  be  paid,  on  the  transfer  there- 
of, to  the  register  of  the  county  where  such  transfer  is  made; 
otherwise  the  corporation  permitting  such  transfer  shall  be- 
come liable  to  pay  such  tax. 

When  tax  to  be  refunded  for  debts  paid. 

§  11.  Whenever  debts  shall  be  proven  against  the  estate 
of  a  decedent,  after  distribution  of  legacies  from  which  the 
collateral  inheritance  tax  has  been  deducted,  in  compliance 
with  this  act,  and  the  legatee  is  required  to  refund  any  por- 
tion of  a  legacy,  a  proportion  of  the  said  tax  shall  be  repaid 
to  him  by  the  executor  or  administrator,  if  the  said  tax  has 
not  been  paid  into  the  state  or  county  treasury,  or  by  the 
county  treasurer,  if  it  has  been  so  paid. 

Appraiser,  how  appointed  and  duties  of. 

§  12.  It  shall  be  the  duty  of  the  register  of  wills  of  the 
county  in  which  letters  testamentary,  or  of  administration, 
are  granted,  to  appoint  an  appraiser  as  often  as,  and  when- 
ever occasion  may  require,  to  fix  the  valuation  of  estates 
which  are,  or  shall  be,  subject  to  collateral  inheritance  tax, 
and  it  shall  be  the  duty  of  such  appraiser  to  make  a  fair  and 
conscionable  appraisement  of  such  estates,  and  it  shall  fur- 
ther be  the  duty  of  such  appraiser  to  assess  and  fix  the  cash 


472  ATPEXDIX  OF  statutes.  [Pa. ,  III.  a. 

value  of  all  annuities  and  life  estates  growing  out  of  said 
estates,  upon  which  annuities  and  life  estates  the  collateral 
inheritance  tax  shall  be  immediately  payable  out  of  the  es- 
tate at  the  rate  of  such  valuation:  Provided,  that  any  per- 
son or  persons  not  satisfied  with  said  appraisement  shall 
have  the  right  to  appeal,  within  thirty  days,  to  the  orphans' 
court  of  the  proper  county  or  city,  on  paying,  or  giving  se- 
curity to  pay,  all  costs,  together  with  whatever  tax  shall  be 
fixed  by  said  court,  and  upon  such  appeal  said  courts  shall 
have  jurisdiction  to  determine  all  questions  of  valuation, 
and  of  the  liability  of  the  appraised  estate  for  such  tax,  sub- 
ject to  the  right  of  appeal  to  the  supreme  court  as  in  other 
cases. 

Penalty  for  appraiser  taking  reward,  &c. 

§  13.  It  shall  be  a  misdemeanor  in  any  appraiser,  appoint- 
ed by  the  register  to  make  any  appraisement  in  behalf  of  the 
commonwealth,  to  take  any  fee  or  reward  from  any  executor 
or  administrator,  legatee,  next  of  kin,  or  heir  of  any  dece- 
dent, and  for  any  such  offense  the  register  shall  dismiss  him 
from  such  service,  and  upon  conviction  in  the  quarter  ses- 
sions, he  shall  be  fined  not  exceeding  five  hundred  dollars, 
and  imprisoned  not  exceeding  one  year,  or  both,  or  either,  at 
the  discretion  of  the  court. 

Returns  made  by  appraiser  to  be  recorded. 

14.  It  shall  be  the  duty  of  the  register  of  wills  to  enter  in 
a  book,  to  be  provided  at  the  expense  of  the  commonwealth, 
to  be  kept  for  that  purpose,  and  which  shall  be  a  public  rec- 
ord the  returns  made  by  all  appraisers  under  this  act,  open- 
ing an  account  in  favor  of  the  commonwealth  against  the 
decedent's  estate,  and  the  register  may  give  certificate  of 
payment  of  such  tax  from  said  record,  and  it  shall  be  the 
duty  of  the  register  to  transmit  to  the  auditor-general,  on 
the  first  day  of  each  month,  a  statement  of  all  returns  made 
by  appraisers  during  the  preceding  month,  upon  which  the 
taxes  remain  unpaid,  which  statement  shall  be  entered  by 
the  auditor-general  in  a  book  to  be  kept  by  him  for  that  pur- 
pose. And  whenever  any  such  tax  shall  have  remained  due 
and  unpaid  for  one  year,  it  shall  be  lawful  for  the  register 
to  apply  to  the  orphans'  court,  by  bill  or  petition,  to  enforce 
the  payment  of  the  same,  whereupon  said  court,  having 
caused  due  notice  to  be  given  to  the  owner  of  the  real  estate 
charged  with  the  tax,  and  to  such  other  persons  as  may  be 


Pa. ,111.  a.]       APPENDIX  OF  STATUTES  473 

interested,  shall  proceed,  according  to  equity,  to  make  such 
decrees,  or  orders,  for  the  payment  of  the  said  tax,  out  of 
such  real  estate,  as  shall  be  just  and  proper. 

On  default  of  payment  of  tax,  citation  to  issue  to 
parties  liable. 

§  15.  If  the  register  shall  discover  that  any  collateral  in- 
heritance tax  has  not  been  paid  over,  according  to  law,  the 
orphans'  court  shall  be  authorized  to  cite  the  executors  or 
administrators  of  the  decedent,  whose  estate  is  subject  to 
the  tax,  to  file  an  account  or  to  issue  a  citation  to  the  exec- 
utors, administrators,  or  heirs,  citing  them  to  appear  on  a 
certain  day  and  show  cause  why  the  said  tax  should  not  be 
paid,  and  when  personal  service  cannot  be  had,  notice  shall 
be  given  for  four  weeks,  once  a  week,  in  at  least  one  news- 
paper published  in  said  county,  and  if  the  said  tax  shall  be 
found  to  be  due  and  unpaid,  the  said  delinquent  shall  pay 
said  tax  and  costs.  And  it  shall  be  the  duty  of  the  register, 
or  of  the  auditor-general,  to  employ  an  attorney,  of  the  prop- 
er county,  to  sue  for  the  recovery  and  amount  of  such  tax, 
and  the  auditor-general  is  authorized  and  empowered,  in 
settlement  of  accounts  of  any  register,  to  allow  him  costs 
of  advertising  and  other  reasonable  fees  and  expenses  in- 
curred in  the  collection  of  taxes. 

Registers  of  -wills,  compensations. 

§  1G.  The  register  of  wills,  of  the  several  counties  of  this 
commonwealth,  upon  their  filing  with  the  auditor-general 
the  bond  hereafter  required,  shall  be  the  agents  of  the  com- 
monwealth for  the  collection  of  the  collateral  inheritance 
tax ;  and  for  services  rendered  in  collecting  and  paying  over 
the  same  the  said  agents  shall  be  allowed  to  retain  for  their 
own  use  five  per  centum  upon  the  collateral  inheritance  tax 
collected,  if  the  said  tax  shall  amount  to  a  sum  less  than 
two  hundred  thousand  dollars  in  any  year;  or  four  per  cent- 
um upon  the  said  tax,  if  the  same  shall  amount  to  two  hun- 
dred thousand  dollars  and  less  than  three  hundred  thousand 
dollars  in  any  year;  or  three  per  centum  upon  the  said  tax, 
if  the  tax  collected  shall  amount  to  three  hundred  thousand 
dollars  or  more  in  any  year;  provided  further,  that  this  sec- 
tion shall  not  apply  to  the  fees  of  the  registers  elected  prior 
to  the  passage  of  this  act.  [As  amended  May  14,  1891; 
Laws  Pa,  1891,  p.  59.] 


-4  74  appendix  of  statutes.  [Pa.,  III.  a. 

To  give  bond. 

§  17.  The  said  register  shall  give  bond  to  the  common- 
wealth in  such  penal  sum  as  the  orphans'  court  of  the  county 
may  direct,  with  two,  or  more,  sufficient  sureties  for  the 
faithful  performance  of  the  duties  hereby  imposed  and  for 
the  regular  accounting  and  paying  over  of  the  amounts  to 
be  collected  and  received,  and  said  bond,  on  its  execution 
and  approval,  by  the  said  orphans'  court,  to  be  forwarded  to 
the  auditor-general. 

County  treasurer,  ■when  to  collect  tax. 

§  18.  Until  bond  and  security  be  given,  as  required  by  the 
preceding  section,  the  said  collateral  inheritance  tax  shall  be 
received  and  collected  by  the  county  treasurer  as  heretofore, 
and  in  such  cases  all  the  provisions  of  this  act,  relating  to 
collection  and  payment  by  registers,  shall  apply- to  the  coun- 
ty treasurer. 

Register  to  make  quarterly  returns. 

§  19.  It  shall  be  the  duty  of  the  register  of  wills,  of  each 
county,  to  make  returns  and  payment  to  the  state  treasurer 
of  all  the  collateral  inheritance  taxes  he  shall  have  received, 
stating  for  what  estate  paid,  on  the  first  Mondays  of  April, 
July,  October  and  January,  in  each  year,  and  for  all  taxes 
collected  by  him  and  not  paid  over  within  one  month,  after 
his  quarterly  return  of  the  same,  he  shall  pay  interest  at 
the  rate  of  twelve  per  centum  per  annum  until  paid. 

Tax  to  remain  a  lien  until  paid. 

§  20.  The  lien  of  the  collateral  inheritance  tax  shall  con- 
tinue until  the  said  tax  is  settled  and  satisfied:  provided, 
that  the  said  lien  shall  be  limited  to  the  property  chargeable 
therewith:  and  provided  further,  that  all  collateral  inherit- 
ance taxes  shall  be  sued  for  within  five  years  after  they  are 
due  and  legally  demandable,  otherwise  they  shall  be  pre- 
sumed to  have  been  paid  and  cease  to  be  a  lien  as  against 
any  purchasers  of  real  estate :  and  provided  further,  that  all 
taxes  due  and  legally  demandable  at  the  date  of  the  passage 
of  this  act,  the  collection  of  which  would  be  barred  by  the 
provisions  hereof,  shall  riot  b'  barred  if  suit  shall  be  brought 
therefor  within  one  year  from  the  date  of  the  passage  of  this 
act. 


Pa.,  III.  a.,  b.]       appendix  of  statutes.  475 

§  21.  All  laws,  or  parts  of  laws,  heretofore  approved,  re- 
lating to  the  collection  of  the  collateral  inheritance  tax,  and 
inconsistent  herewith,  be  and  the  same  are  hereby  repealed. 

Approved  May  6,  1887. 

(b)  No.  243,  Laws  1895,  P.  325. 

An  act,  fixing  the  compensation  of  appraisers  appointed  by 
the  registers  of  wills  of  the  several  counties  to  appraise 
the  value  of  estates  subject  to  the  payment  of  collateral 
inheritance  tax,  and  of  experts  employed  to  assist  such 
appraisers. 

Compensation  of  appraisers — Traveling  expenses 
allowed — Sworn  statement  of  expenses. 

§  1.  Be  it  enacted,  &c,  that  from  and  after  the  passage  of 
this  act,  the  compensation  of  appraisers  appointed  by  the 
registers  of  wills  of  the  several  counties  of  the  commonwealth 
to  fix  the  value  of  estates  which  are  or  may  hereafter  be  sub- 
ject to  collateral  inheritance  tax  shall  be  as  follows,  namely: 
For  each  and  every  day  on  which  an  appraiser  shall  actually 
be  engaged  in  making  appraisement  of  property  subject  to 
said  tax,  he  shall  receive  the  sum  of  two  dollars;  provided, 
that  if,  in  the  discharge  of  his  duties,  it  shall  be  necessary 
for  him,  the  said  appraiser,  to  travel  from  his  place  of  resi- 
dence to  appraise  property  subject  to  said  tax,  he  shall  be 
allowed  such  actual  necessary  traveling  expenses  as  he  may 
incur,  which  expenses  shall  be  itemized  in  a  sworn  state- 
ment to  be  returned  to  the  register  and  subject  to  the  final 
approval  of  the  auditor  general. 

Expert  appraiser  may  be  appointed  when  neces- 
sary— Additional  compensation  may  be  allowed 
expert — Appraiser  may  employ  expert  to  assist 
him  —  Register  of  wills  must  certify  to  auditor 
general  that  expert  appraiser  is  necessary  or  that 
an  expert  assistant  is  necessary — Auditor  general 
must  approve  appointments — Itemized  statement 
of  services  performed,  etc.,  must  be  rendered  to 
auditor  general  —  Clerk  in  office  of  register  of 
wills  shall  not  be  appointed  as  expert. 

§  2.  It  is  hereby  further  provided  and  enacted  that  when, 
by  virtue  of  the  complicated  nature  of  an  estate  subject  to 


476  APPENDIX  OF  statutes.  [Pa.,  III.  b. 

the  payment  of  collateral  inheritance  tax,  the  interest  of  the 
commonwealth  shall  require  the  appointment,  as  appraiser 
of  said  estate,  of  a  person  possessed  of  expert  or  technical 
knowledge  to  ascertain  the  value  thereof,  reasonable  addi- 
tional compensation  shall  be  allowed  said  appraiser  for  the 
exercise  of  such  expert  or  technical  knowledge,  and  in  cases 
where,  after  the  appointment  of  an  appraiser  to  appraise 
the  value  of  an  estate  subject  to  the  payment  of  collateral 
inheritance  tax,  it  shall  appear  that  the  proper  appraise- 
ment of  said  estate  will  require  the  services  of  a  person 
possessed  of  expert  or  technical  knowledge  whereof  the  ap- 
praiser appointed  to  appraise  said  estate  is  not  possessed, 
he,  the  said  appraiser,  may  employ  the  services  of  a  person 
possessed  of  expert  or  technical  knowledge  to  assist  him  in 
the  appraisement  of  said  estate,  and  for  such  services  the 
person  so  employed  shall  receive  reasonable  compensation: 
provided,  that  in  all  such  cases  the  register  of  wills  appoint- 
ing the  appraiser  shall  certify  to  the  auditor  general,  that 
there  is  actual  necessity  for  the  appointment  of  an  appraiser 
possessed  of  expert  or  technical  knowledge,  or  that  the  ap- 
praiser already  appointed  to  appraise  the  estate  in  question 
should  be  assisted  by  a  person  possessed  of  such  knowledge, 
and  no  person  shall  be  appointed  as  such  expert  appraiser, 
or  as  expert  assistant  to  an  appraiser,  without  the  approval 
of  the  auditor  general  of  said  appointment  first  had  and  ob- 
tained, nor  shall  any  payment  be  made  to  any  appraiser,  or 
to  any  person  employed  by  him,  under  this  section,  until  an 
itemized  statement  of  the  services  performed  and  the  com- 
pensation recommended  shall  have  been  rendered,  under 
oath  or  affirmation,  to  the  auditor  general  for  his  approval 
and  shall  have  received  the  same:  and  provided  further, 
that  no  clerk  or  other  person  employed  in  the  office  of  a  reg- 
ister of  wills  shall  be  appointed  an  expert  appraiser  of  an 
estate  subject  to  the  payment  of  collateral  inheritance  tax, 
nor  as  an  expert  to  assist  the  appraiser  of  such  estate. 
Approved  the  26th  day  of  June,  A.  D.  1895. 


Mass. ,  IV.  a.]  appendix  of  statutes.  477 

IV.     MASSACHUSETTS. 

(a)  Chapter  425,  Laws  1891,  with  Amendments  to  1895. 

An  act  imposing  a  tax  on  collateral  legacies  and  successions. 
Be  it  enacted,  etc.,  as  follows: 

Tax  imposed  on  collateral  legacies  and  successions. 

§  1.  All  property  within  the  jurisdiction  of  the  common- 
wealth, and  any  interest  therein,  whether  belonging  to  in- 
habitants of  the  commonwealth  or  not,  and  whether  tangible 
or  intangible,  which  shall  pass  by  will  or  by  the  laws  of  the 
commonwealth  regulating  intestate  succession,  or  by  deed, 
grant,  sale  or  gift,  made  or  intended  to  take  effect  in  posses- 
sion or  enjoyment  after  the  death  of  the  grantor,  to  any  per- 
son in  trust  or  otherwise,  other  than  to  or  for  the  use  of  the 
father,  mother,  husband,  wife,  lineal  descendant,  brother, 
sister,  adopted  child,  the  lineal  descendant  of  any  adopted 
child,  the  wife  or  widow  of  a  son,  or  the  husband  of  a  daugh- 
ter of  a  decedent,  or  to  or  for  charitable,  educational  or  re- 
ligious societies  or  institutions,  the  property  of  which  is 
exempt  by  law  from  taxation,  shall  be  subject  to  a  tax  of 
five  per  centum  of  its  value,  for  the  use  of  the  common- 
wealth; and  all  administrators,  executors  and  trustees,  and 
any  such  grantee,  under  a  conveyance  made  during  the 
grantor's  life,  shall  be  liable  for  all  such  taxes,  with  lawful 
interest  as  hereinafter  provided,  until  the  same  have  been 
paid  as  hereinafter  directed;  provided,  however,  that  no 
estate  shall  be  subject  to  the  provisions  of  this  act  unless 
the  value  of  the  same,  after  the  payment  of  all  debts,  shall 
exceed  the  sum  of  ten  thousand  dollars. 

Property  bequeathed   to   direct    heir    for   term   of 
years. 

§  2.  When  any  person  bequeaths  or  devises  any  property 
to  or  for  the  use  of  father,  mother,  husband,  wife,  lineal  de- 
scendant, brother,  sister,  an  adopted  child,  the  lineal  de- 
scendant of  any  adopted  child,  the  wife  or  widow  of  a  son,  or 
the  husband  of  a  daughter,  during  life  or  for  a  term  of  years, 
and  the  remainder  to  a  collateral  heir  or  to  a  stranger  to  the 
blood,  the  value  of  the  prior  estate  shall,  within  three 
months  after  the  date  of  giving  bond  by  the  executor,  ad- 


478  appendix  of  statutes.  [Mass. ,  IV.  a. 

ministrator  or  trustee,  be  appraised  in  the  manner  herein- 
after provided,  and  deducted  from  the  appraised  value  of 
such  property,  and  the  remainder  shall  be  subject  to  a  tax 
of  five  per  centum  of  its  value. 

Property,  in  excess  of  reasonable  compensation,  be- 
queathed to  executors,  etc. 

§  3.  Whenever  a  decedent  appoints  one  or  more  executors 
or  trustees,  and  in  lieu  of  their  allowance  makes  a  bequest 
or  devise  of  property  to  them  which  would  otherwise  be  lia- 
ble to  said  tax,  or  appoints  them  his  residuary  legatees, 
and  said  bequests,  devises  or  residuary  legacies  exceed  what 
would  be  a  reasonable  compensation  for  their  services,  such 
excess  shall  be  liable  to  such  tax,  and  the  probate  court 
having  jurisdiction  of  their  accounts,  upon  the  application 
of  any  one  interested  or  the  treasurer  of  the  commonwealth, 
shall  fix  such  compensation. 

Taxes   payable   to  the   treasurer    of  the   common- 
wealth. 

§  4.  All  taxes  imposed  by  this  act  shall  be  payable  to  the 
treasurer  of  the  commonwealth  by  the  executors,  adminis- 
trators or  trustees,  at  the  expiration  of  two  years  from  the 
date  of  their  giving  bond;  provided  that  whenever  legacies 
or  distributive  shares  are  paid  within  the  two  years,  the 
taxes  thereon  shall  be  payable  at  the  time  the  same  are  paid. 

In  case,  however,  where  the  probate  court  has  ordered  the 
executor  or  administrator  to  retain  the  funds  to  satisfy  a 
claim  of  a  creditor  whose  right  of  action  for  which  does  not 
accrue  within  the  two  years,  the  payment  of  the  tax  may 
be  suspended  by  an  order  of  the  court  to  await  the  dis- 
position of  such  claim.  If  the  taxes  are  not  paid  when 
due,  interest  at  the  rate  of  six  per  cent,  per  annum  shall  be 
charged  and  collected  from  the  time  the  same  became  due; 
and  the  taxes  and  interest  that  may  accrue  on  the  same  shall 
be  and  remain  a  lien  on  the  property  subject  to  the  taxes  till 
the  same  are  paid  to  the  commonwealth. 

[As  amended  by  chapter  430,  Laws  1895.] 

Administrator,  &c,  to  collect  the  tax. 

§  5.  Any  administrator,  executor  or  trustee  having  in 
charge  or  trust,  any  property  subject  to  said  tax,  shall  de- 
duct the  tax  therefrom,  or  shall  collect  the  tax  thereon, 
from  the  legatee  or  person  entitled  to  said  property,  and  he 


Mass.,  IV.  a.]  appendix  of  statutes.  479 

shall  not  deliver  any  specific  legacy  or  property  subjed  to 
said  tax  to  any  person  until  lie  has  collected  the  tax  thereon. 

Tax   to   be   deducted    -when    legacies    are    charged 
upon  real  estate,  &c. 

§  G.  Whenever  any  legacies,  subject  to  said  tax  are 
charged  upon  or  payable  out  of,  any  real  estate,  the  heir 
or  devisee,  before  paying  the  same,  shall  deduct  said  tax 
therefrom,  and  pay  it  to  the  executor,  administrator  or 
trustee,  and  the  same  shall  remain  a  charge  upon  said  real 
estate  until  it  is  paid;  and  payment  thereof  shall  be  en- 
forced by  the  executor,  administrator  and  trustee,  in  the 
same  manner  as  the  payment  of  the  legacy  itself  could  be 
enforced. 

Tax  to  be  retained  when   money  is    given  for  a 
limited  period,  &c. 

§  7.  If  any  such  legacy  is  given  in  money  to  any  person  for 
a  limited  period,  such  administrator,  executor  or  trustee 
shall  retain  the  tax  on  the  whole  amount;  and  if  it  is  not  in 
money,  he  shall  make  an  application  to  the  court  having 
jurisdiction  of  his  accounts  to  make  an  apportionment,  if 
the  case  requires  it,  of  the  sum  to  be  paid  into  his  hands  by 
such  legatee  on  account  of  said  tax,  and  for  such  further 
orders  as  the  case  may  require. 

Real  estate  may  be  sold  for  payment  of  the  tax. 

§  8.  The  probate  court  may  authorize  administrators, 
executors  and  trustees  to  sell  real  estate  of  one  deceased  for 
the  payment  of  said  tax,  in  the  same  manner  as  adminis- 
trators and  executors  may  be  authorized  to  sell  real  estate 
for  the  payment  of  debts. 

Inventory  to  be  filed  -within  3  months. 

§  9.  An  inventory  of  every  estate,  any  part  of  which  may 
be  subject  to  a  tax  under  the  provisions  of  this  act,  shall  be 
filed  by  the  executor,  administrator  or  trustee,  within  three 
months  from  his  appointment  and  qualification.  In  case 
such  executor,  administrator  or  trustee  neglects  or  refuses 
to  file  such  inventory  as  above  required,  he  shall  be  liable 
to  a  penalty  of  not  more  than  one  thousand  dollars,  and  the 
treasurer  of  the  commonwealth  may,  when  in  his  judgment 
the  interests  of  the  commonwealth  require,  commence  in  his 


480  appendix  of  statutes.  [Mass. ,  IV.  a. 

own  name  appropriate  proceedings  against  such  executor, 
administrator  or  trustee  for  the  recovery  of  such  penalty; 
and  it  shall  be  the  duty  of  the  several  registers  of  probate 
to  notify  the  treasurer  of  the  commonwealth,  within  thirty 
days  of  the  expiration  of  the  said  three  months,  of  any  such 
neglect  or  refusal  which  may  occur  in  their  respective 
counties. 

[As  amended,  Laws  1895,  c.  430.] 

Copy  of  inventory  to  be  mailed  to  the  treasurer  of 
the  commonwealth. 

§  10.  A  copy  of  the  inventory  of  every  estate,  any  part  of 
which  may  be  subject  to  a  tax  under  the  provisions  of  this 
act,  or  if  the  same  can  be  conveniently  separated,  then  a 
copy  of  the  inventory  of  such  part  of  such  estate,  with  the 
appraisal  thereof,  shall  be  sent  by  mail,  by  the  register  of  the 
probate  court  in  which  such  inventory  is  filed,  to  the  treas- 
urer of  the  commonwealth  within  thirty  days  after  the  same 
is  filed.  The  fees  for  such  copy  shall  be  paid  by  the  treas- 
urer of  the  commonwealth. 

Treasurer  of  commonwealth  to  be  informed  when 
real  estate  becomes  subject  to  tax. 

§  11.  Whenever  any  of  the  real  estate  of  a  decedent  shall 
so  pass  to  another  person  as  to  become  subject  to  said  tax, 
the  executor,  administrator  or  trustee  of  the  decedent  shall 
inform  the  treasurer  of  the  commonwealth  thereof  within 
six  months  after  he  has  assumed  the  duties  of  his  trust  or 
if  the  fact  is  not  known  to  him  within  that  time,  then  with- 
in one  month  from  the  time  when  the  fact  becomes  known 
to  him. 

Tax  to  be  refunded  when  wrongfully  paid. 

§  12.  Whenever,  for  any  reason,  the  devisee,  legatee  or 
heir,  who  has  paid  any  such  tax,  afterwards  refunds  any  por- 
tion of  the  property  on  which  it  was  paid,  or  it  is  judicially 
determined  that  the  whole  or  any  part  of  such  tax  ought  not 
to  have  been  paid,  said  tax,  or  the  due  proportional  part  of 
said  tax  shall  be  paid  back  to  him  by  the  executor,  admin- 
istrator or  trustee. 

To  be  assessed  on  market  value  of  property. 

§  13.  The  value  of  such  property  as  may  be  subject  to  said 
tax  shall  be  its  actual  value,  as  found  by  the  probate,  but 


Mass.,  IV.  a.]  appendix  of  statutes.  481 

the  treasurer  of  the  commonwealth,  or  any  person  interested 
in  the  succession  to  said  property,  may  apply  to  the  probate 
court  having  jurisdiction  of  the  estate,  and  on  such  applica- 
tion said  court  shall  appoint  three  disinterested  persons 
who,  being  first  sworn,  shall  appraise  such  property  at  its 
actual  market  value,  for  the  purposes  of  said  tax,  and  shall 
make  return  thereof,  to  said  court,  which  return  may  be 
accepted  by  said  court;  and  if  so  accepted  it  shall  be  bind- 
ing upon  the  person  by  whom  the  tax  is  to  be  paid,  and  upon 
the  commonwealth.  And  the  fees  of  the  appraiser  shall  be 
fixed  by  the  judge  of  probate  and  paid  by  the  treasurer  of 
the  commonwealth. 

Value  of  an  annuity  or  life  estate. 

In  case  of  an  annuity  or  life  estate  the  value  thereof 
shall  be  determined  by  the  so-called  actuaries'  combined  ex- 
perience tables  and  four  per  cent,  compound  interest. 

Court  to   have  jurisdiction  to  determine  all  ques- 
tions relating  to  tax. 

§  14.  The  probate  court  having  jurisdiction  of  the  settle- 
ment of  the  estate  of  the  decedent,  shall  have  jurisdiction  to 
hear  and  determine  all  questions  in  relation  to  said  tax  that 
may  arise  affecting  any  devise,  legacy  or  inheritance  under 
this  act,  subject  to  appeal  as  in  other  cases,  and  the  treas- 
urer of  the  commonwealth  shall  represent  the  interests  of 
the  commonwealth  in  any  such  proceedings. 

Administration  of  estate  liable  to  tax  -when  -will, 
etc.,  is  not  offered  for  probate  within  four  months. 

§  15.  If,  upon  the  decease  of  any  person  leaving  an  estate  li- 
able to  a  tax  under  the  provisions  of  this  act,  a  will  disposing 
of  such  estate  is  not  offered  for  probate,  or  an  application  for 
administration  made  within  four  months  from  the  time  of 
such  decease,  the  treasurer  of  the  commonwealth  may  make 
application  to  the  proper  probate  court,  setting  forth  such 
fact  and  praying  that  an  administrator  may  be  appointed, 
and  thereupon  said  court  shall  appoint  an  administrator 
to  administer  upon  such  estate. 

Final  settlement  not  to  be  allowed  until  all  taxes 
have  been  paid. 

§  16.  No  final  settlement  of  the  account  of  any  executor, 
administrator  or  trustee,  shall  be  accepted  or  allowed  by  any 
law  inher. — 31 


482  appendix  of  statutes.     [Mass. ,  IV.  a. ,  b. 

probate  court  unless  such  account  shows,  and  the  judge  of 
said  court  finds,  that  all  taxes  imposed  by  the  provisions  of 
this  act  upon  any  property  or  interest  therein,  belonging  to 
the  estate  to  be  settled  by  said  account,  have  been  paid;  and 
the  receipt  of  the  treasurer  of  the  commonwealth  for  such 
tax,  but  in  case  such  tax  has  been  paid  to  a  county  treasurer 
as  hereinbefore  provided,  then  such  officer's  receipt  shall  be 
the  proper  voucher  for  such  payment. 

Words  "person"  and  "property"  denned. 

§  17.  In  the  foregoing  sections  the  word  "person"  shall  in- 
clude the  plural  as  well  as  the  singular,  and  artificial  as  well 
as  natural  persons;  the  word  "property"  shall  include  both 
real  and  personal  estate,  and  any  forms  of  interest  therein 
whatsoever,  including  annuities. 

Treasurer   may  bring   suit   for   recovery  of  taxes 
unpaid. 

§  18.  The  treasurer  of  the  commonwealth  shall,  within  six 
months  after  the  same  shall  be  due  and  payable,  bring  suit 
in  his  own  name  for  the  recovery  of  all  taxes  remaining  un- 
paid, and  shall  also  bring  such  suit  when  the  judge  of  a 
probate  court  shall  certify  to  him  that  a  final  account  of 
anjr  executor,  administrator  or  trustee  has  been  filed  in  said 
court,  and  that  the  final  settlement  of  such  estate  is  delayed 
by  reason  of  the  nonpayment  of  such  tax,  and  such  certifi- 
cate shall  issue  upon  the  application  of  any  heir,  legatee,  or 
any  person  in  interest;  provided,  however,  that  the  probate 
court  may  extend  the  time  when  any  tax  shall  be  due  and 
payable  whenever  the  circumstances  of  the  case  may  require. 

Approved  June  11,  1891. 


(b)  Chapter  432,  Laws  1893. 

rAn  act  relating  to  the  collection  of  taxes  on  collateral  lega- 
cies and  successions. 

Be  it  enacted,  etc.,  as  follows: 

§  1.  The  treasurer  and  receiver  general  is  authorized  to 
expend  a  sum  not  exceeding  one  thousand  dollars  annually 
for  extra  clerical  assistance  in  the  assessment  and  collection 
of  taxes  on  collateral  legacies  and  successions,  under  chap- 
ter four  hundred  and  twenty-five  of  the  Acts  of  the  Year 
Eighteen  Hundred  and  Ninety  One;  and  he  may,  if  he  deems 


MaSS.,  IV.  C.]      APPENDIX  OF  STATUTES.    *  483 

it  best  so  to  do,  assign  such  portions  of  the  work  as  can  be 
performed  by  that  officer  without  detriment  to  the  public 
service,  to  the  deputy  scaler  of  weights  and  measures,  to 
whom  such  compensation,  in  addition  to  his  salary  of  deputy 
sealer  of  weights  and  measures,  as  the  treasurer  and  receiver 
general  may  deem  proper,  may  be  paid  from  the  amount 
herein  authorized  to  be  expended. 

Approved  June  9,  1893. 

(c)  Laws  1895,  Ch.  307. 

!Aji  act  relative  to  taxes  on  collateral  legacies  and  succes- 
sions. 

Be  it  enacted,  etc.,  as  follows : 

§  1.  No  bequest  of  a  testator  whose  estate  is  subject  to 
taxation  under  the  provisions  of  chapter  four  hundred  and 
twenty-five  of  the  Acts  of  the  Year  1891  shall  be  subject 
to  the  provisions  of  said  chapter  unless  the  value  of  such 
bequest  exceeds  the  sum  of  $500,  nor  shall  bequests  to 
towns,  for  any  public  purpose,  be  subject  to  a  tax  under  the 
provisions  of  said  chapter. 

§  2.  This  act  shall  take  effect  upon  its  passage. 

Approved  April  25,  1895. 


484  APPENDIX  OF  statutes.  [Me.,  V.  a. 


V.     MAINE. 

(a)  Laws  1893,  Ch.  146,  as  Amended  by  Chapters  96  and 
124,  Laws  1895. 

An  act  to  tax  collateral  inheritances. 

Be  it  enacted  by  the  senate  and  house  of  representatives  in 
legislature  assembled,  as  follows: 

§  1.  All  property  within  the  jurisdiction  of  this  state,  and 
any  interest  therein,  whether  belonging  to  inhabitants  of 
this  state  or  not,  and  whether  tangible  or  intangible,  which 
shall  pass  by  will  or  by  the  intestate  laws  of  the  state,  or 
by  deed,  grant,  sale,  or  gift  made  or  intended  to  take  effect 
in  possession  or  enjoyment  after  the  death  of  the  grantor,  to 
any  person  in  trust  or  otherwise,  other  than  to  or  for  the  use 
of  the  father,  mother,  husband,  wife,  lineal  descendant, 
adopted  child,  the  lineal  descendant  of  any  adopted  child, 
the  wife  or  widow  of  a  son,  or  the  husband  of  the  daughter 
of  a  decedent,  or  any  educational,  charitable,  or  benevolent 
institution  in  this  state  [as  amended  by  chapter  96,  Laws 
Me.  1895],  shall  be  liable  to  a  tax  of  two  and  a  half  per  cent, 
of  its  value,  above  the  sum  of  five  hundred  dollars,  for  the 
use  of  the  state,  and  all  administrators,  executors,  and  trus- 
tees, and  any  such  grantee  under  a  conveyance  made  during 
the  grantor's  life  shall  be  liable  for  all  such  taxes,  with  law- 
ful interest,  as  hereinafter  provided,  until  the  same  shall 
have  been  paid  as  hereinafter  directed. 

§  2.  When  any  person  shall  bequeath  or  devise  any  prop- 
erty to  or  for  the  use  of  father,  mother,  husband,  wife,  lineal 
descendant,  an  adopted  child,  the  lineal  descendant  of  any 
adopted  child,  the  wife  or  widow  of  a  son,  or  the  husband  of 
a  daughter  during  life  or  for  a  term  of  years,  and  the  re- 
mainder to  a  collateral  heir,  or  to  a  stranger  to  the  blood 
other  than  an  educational,  charitable  or  benevolent  institu- 
tion in  this  state  the  value  of  the  prior  estate  shall,  within 
three  months  after  the  appointment  of  the  executor,  be  ap- 
praised in  the  manner  hereinafter  provided,  and  deducted, 
together  with  the  sum  of  five  hundred  dollars,  from  the  ap- 
praised value  of  such  property,  and  said  tax  on  the  remain- 
der shall  be  payable  within  one  year  from  the  death  of  said 
testator,  or  within  such  further  time  as  the  judge  of  the 
probate  may  allow  [Id.],  and,  together  with  any  interest 


Me.,  V.  a. J  appendix  of  statutes.  485 

that  may  accrue  on  the  same,  be  and  remain  a  lien  on  said 
property  till  paid  to  the  state. 

§  3.  Whenever  a  decedent  appoints  one  or  more  executors 
or  trustees,  and  in  lieu  of  their  allowance  makes  a  bequest 
or  devise  of  property  to  them,  which  would  otherwise  be 
liable  to  said  tax,  or  appoints  them  his  residuary  legatees, 
and  said  bequests,  devises  or  residuary  legacies  exceed  what 
wrould  be  a  reasonable  compensation  for  their  services,  such 
excess  shall  be  liable  to  such  tax,  and  the  court  of  probate 
having  jurisdiction  of  their  accounts  shall  determine  what 
shall  be  such  reasonable  compensation. 

§  4.  All  taxes  imposed  by  this  act  shall  be  payable  to  the 
treasurer  of  state  by  the  executors,  administrators  or  trus- 
tees within  30  days  from  the  date  of  the  decrees  determining 
the  amount  thereof,  and  if  the  same  are  not  so  paid,  interest 
at  the  rate  of  nine  per  cent,  shall  be  charged  them  and  col- 
lected from  the  time  said  tax  became  due. 

§  5.  Any  administrator,  executor,  or  trustee,  having  in 
charge  or  trust  any  property  subject  to  such  tax,  shall  de- 
duct the  tax  therefrom,  or  shall  collect  the  tax  thereon  and 
interest  chargeable  under  this  act,  from  the  legatee  or  per- 
son entitled  to  said  property,  and  he  shall  not  deliver  any 
specific  legacy  or  property  subject  to  said  tax  to  any  person 
until  he  has  collected  the  tax  thereon. 

§  6.  Whenever  any  legacies  subject  to  said  tax  shall  be 
charged  upon  or  payable  out  of  any  real  estate,  the  heir  or 
devisee,  before  paying  the  same,  shall  deduct  said  tax  there- 
from and  pay  it  to  the  executor,  administrator,  or  trustee, 
and  the  same  shall  remain  a  charge  upon  said  real  estate 
until  it  is  paid;  and  payment  thereof  shall  be  enforced  by 
the  executor,  administrator,  or  trustee,  in  the  same  manner 
as  the  payment  of  the  legacy  itself  could  be  enforced. 

§  7.  If  any  such  legacy  be  given  in  money  to  any  person 
for  a  limited  period,  such  administrator,  executor,  or  trustee 
shall  retain  the  tax  on  the  whole  amount;  but  if  it  be  not  in 
money,  he  shall  make  an  application  to  the  judge  of  probate 
having  jurisdiction  of  his  accounts  to  make  an  apportion- 
ment, if  the  case  require  it,  of  the  sum  to  be  paid  into  his 
hands  by  such  legatee  on  account  of  said  tax  and  for  such 
further  order  as  the  case  may  require. 

§  8.  All  administrators,  executors  and  trustees  shall  have 
power  to  sell  so  much  of  the  estate  of  the  deceased  as  will 
enable  them  to  pay  said  tax  in  the  same  manner  as  they 
may  be  empowered  to  do  for  the  payment  of  his  debts. 

§  9.  A  copy  of  the  inventory  of  every  estate,  any  part  of 


486  APPENDIX  OF  statutes.  [Me. ,  V.  a. 

"which  may  be  subject  to  a  tax  under  the  provisions  of  this 
act,  or  if  the  same  can  be  conveniently  separated,  then  a 
copy  of  such  part  of  such  inventory,  with  the  appraisal 
thereof,  shall  be  sent  by  mail  by  the  register  or  the  judge  of 
the  court  of  probate  in  which  such  inventory  is  filed,  to  the 
state  assessors  within  ten  days  after  the  same  is  filed.  The 
fees  for  such  copy  shall  be  paid  by  the  executor,  administra- 
tor, or  trustee,  and  allowed  in  his  account. 

§  10.  Whenever  any  of  the  real  estate  of  a  decedent  shall 
so  pass  to  another  person  as  to  become  subject  to  said  tax, 
the  executor,  administrator,  or  trustee  of  the  decedent  shall 
inform  the  state  assessors  thereof  within  six  months  after 
he  has  assumed  the  duties  of  his  trust,  or  if  the  fact  is  not 
known  to  him  within  that  time,  then  within  one  month  after 
it  does  become  so  known  to  him. 

§  11.  Whenever  for  any  reason  the  devisee,  the  legatee  or 
heir  who  has  paid  any  such  tax  shall  refund  any  portion  of 
the  property  on  which  it  was  paid,  or  it  shall  be  judicially 
determined  that  the  whole  or  any  part  of  such  tax  ought 
not  to  have  been  paid,  said  tax,  or  the  due  proportional  part 
of  said  tax,  shall  be  paid  back  to  him  by  the  executor,  ad- 
ministrator, or  trustee. 

§  12.  The  value  of  such  property  as  may  be  subject  to  said 
tax  shall  be  its  actual  market  value  as  found  by  the  judge 
of  probate  after  public  notice  or  personal  notice  to  the  state 
assessors  and  all  persons  interested  in  the  succession  to  said 
property,  or  the  state  assessors  or  any  of  said  persons  inter- 
ested may  apply  to  the  judge  of  probate  having  jurisdiction 
of  the  estate,  and  on  such  application  the  judge  shall  ap- 
point three  disinterested  persons,  who,  being  first  sworn, 
shall  view  and  appraise  such  property  at  its  actual  market 
value  for  the  purposes  of  said  tax,  and  shall  make  return 
thereof  to  said  probate  court,  which  return  may  be  accepted 
by  said  court  in  the  same  manner  as  the  original  inventory 
of  such  estate  is  accepted,  and  if  so  accepted  it  shall  be  bind- 
ing upon  the  person  by  whom  this  tax  is  to  be  paid  and  upon 
the  state.  And  the  fees  of  the  appraisers  shall  be  fixed  by 
the  judge  of  probate  and  paid  by  the  executor,  administra- 
tor or  trustee.  In  case  of  an  annuity  or  life  estate  the 
value  thereof  shall  be  determined  by  the  so-called  actuaries' 
combined  experience  tables  and  five  per  cent,  compound  in- 
terest.     [As  amended  by  chapter  96,  Laws  1895,  §  6.] 

§  13.  The  court  of  probate,  having  either  principal  or  an- 
cillary jurisdiction  of  the  settlement  of  the  estate  of  the  de- 
cedent, shall  have  jurisdiction  to  hear  and  determine  all 


Me. ,  V.  a.]  appendix  of  statutes.  487 

questions  in  relation  to  said  tax  that  may  arise  affecting  any 
devise,  legacy  or  inheritance  under  this  act,  subject  to  ap- 
peal as  in  other  cases,  and  the  county  attorney  of  the  county 
where  the  hearing  is  had,  shall  represent  the  interests  of  the 
slate  in  any  such  proceedings.  The  judge  of  probate  hav- 
ing jurisdiction  as  aforesaid,  shall  fix  the  time  and  place  for 
hearing  and  determining  such  questions,  and  shall  give  pub- 
lic notice  thereof  and  personal  notice  to  the  executor,  admin- 
istrator or  trustee.  Appeals  on  behalf  of  the  estate  shall 
be  taken  in  the  name  of  the  executor,  administrator  or  trus- 
tee, and  service  upon  the  county  attorney  of  the  county 
where  the  hearing  is  had  shall  be  sufficient.  Where  appeals 
are  taken  by  the  state,  service  shall  be  made  upon  the  exec- 
utor, administrator  or  trustee.  [As  amended  by  Laws  1895, 
c.  124.] 

§  14.  Every  judge  of  probate  shall,  as  often  as  once  in  six 
months,  render  to  the  state  assessors  a  statement  of  the 
property  within  the  jurisdiction  of  his  court  that  has  be- 
come subject  to  said  tax  during  such  period,  the  name  of 
the  testator,  intestate  or  grantor,  and  the  name  of  the  bene- 
ficiary whose  estate  is  so  taxable,  and  amount  of  such  taxes 
as  will  accrue  during  the  next  six  months,  so  far  as  the  same 
can  be  determined  from  the  probate  records,  and  the  num- 
ber and  amount  of  such  taxes  as  are  due  and  unpaid.  [Re- 
pealed by  chapter  90.  Laws  1895,  §  7.] 

§  15.  The  fees  of  judges  or  registers  of  probate  for  the  du- 
ties required  of  them  by  this  act  shall  be,  for  each  order, 
appointment,  decree,  judgment,  or  approval  of  appraisal  of 
report  required  hereunder,  fifty  cents,  and  for  copies  of  rec- 
ords, the  fees  that  are  now  allowed  by  law  for  the  same. 
And  the  administrators,  executors,  trustees,  or  other  per- 
sons paying  said  tax  shall  be  entitled  to  deduct  the  amount 
of  all  such  fees  paid  to  the  judge  or  register  of  probate  from 
the  amount  of  said  tax  to  be  paid  to  the  treasurer  of  state. 

§  16.  No  final  settlement  of  the  account  of  any  executor, 
administrator,  or  trustee  shall  be  accepted  or  allowed  by  any 
judge  of  probate  unless  it  shall  show,  on  oath  or  the  affirma- 
tion of  the  accountant,  and  the  judge  of  said  court  shall  find, 
that  all  taxes,  imposed  by  the  provisions  of  this  act,  upon 
any  property  or  interest  therein,  belonging  to  the  estate  to 
be  settled  by  said  account,  shall  have  been  paid,  and  the 
receipt  of  the  treasurer  of  state  for  such  tax  shall  be  the 
proper  voucher  for  such  payment. 

§  17.  In  the  foregoing  sections  relating  to  collateral  in- 
heritances  the  word  "person"  shall  be  construed  to  include 


488  APPENDIX  OF  statutes.  [Me. ,  V.  a. ,  b. 

bodies  corporate  as  well  as  natural  persons;  the  word  "prop- 
erty" shall  be  construed  to  include  both  real  and  personal 
estate  and  any  form  of  interest  therein  whatsoever,  includ- 
ing annuities. 

§  18.  This  act  shall  not  apply  to  any  case  now  pending  in 
the  probate  court,  and  shall  take  effect  when  approved. 

Approved  February  9. 

(b)  Chapter  96,  Laws  1895,  §  9. 

§  9.  After  failure  to  pay  such  tax,  as  provided  in  said  act, 
such  an  administrator,  executor  or  trustee  is  liable  to  the 
state  on  his  administration  bond  for  such  tax  and  interest, 
and  an  action  shall  lie  thereon  without  the  authority  of  the 
judge  of  probate;  or  an  action  of  debt  may  be  maintained 
in  the  name  of  the  state  against  any  such  administrator, 
executor  or  trustee  or  any  such  grantee  for  such  tax  and  in- 
terest. But  if  such  administrator,  executor  or  trustee,  after 
being  duly  cited  therefor,  refuses  or  neglects  to  return  his 
inventory,  or  to  settle  an  account,  by  reason  whereof  the 
judge  of  probate  cannot  determine  the  amount  of  such  tax, 
such  administrator,  executor  or  trustee  shall  be  liable  to  the 
state  on  his  administration  bond  for  all  damages  occasioned 
thereby. 


Ohio,  VI.  a.]  appendix  of  statutes.  489 

VI.  OHIO. 

(a)  Laws  1893,  P.  14,  as  Amended  by  Laws  1894,  P.  169. 

An  act  imposing  a  collateral-inheritance  tax. 

Passed  January  27,  1893,  and  amended  April  20,  1894. 

Section  1.  Be  it  enacted  by  the  general  assembly,  &c,  as 
follows: 

§  1.  That  all  property  within  the  jurisdiction  of  this  state, 
and  any  interest  therein,  whether  belonging  to  inhabitants 
of  this  state  or  not,  and  whether  tangible  or  intangible, 
which  shall  pass  by  will  or  by  the  intestate  laws  of  this  state, 
or  by  deed,  grant,  sale  or  gift  made  or  intended  to  take  effect 
in  possession  or  enjojinent  after  the  death  of  the  grantor, 
to  any  person  in  trust  or  otherwise,  other  than  to  or  for  the 
use  of  the  father,  mother,  husband,  wife,  brother,  sister, 
niece,  nephew,  lineal  descendant,  adopted  child,  or  person 
recognized  as  an  adopted  child  and  made  a  legal  heir  under 
the  provisions  of  section  4182  of  the  Revised  Statutes  of 
Ohio,  or  the  lineal  descendant  thereof,  or  the  lineal  descend- 
ant of  any  adopted  child,  the  wife  or  widow  of  a  son,  the  hus- 
band of  the  daughter  of  a  decedent,  shall  be  liable  to  a  tax 
of  five  per  centum  of  its  value,  above  the  sum  of  two  hun- 
dred dollars,  seventy-five  per  centum  of  such  tax  to  be  for  the 
use  of  the  state,  and  twenty-five  per  centum  for  the  use  of 
the  county  wherein  the  same  is  collected;  and  all  adminis- 
trators, executors  and  trustees,  and  any  such  grantee  under  a 
conveyance  made  during  the  grantor's  life,  shall  be  liable  for 
all  such  taxes,  with  lawful  interest  as  hereinafter  provided, 
until  the  same  shall  have  been  paid  as  hereinafter  directed. 
Such  taxes  shall  become  due  and  payable  immediately  upon 
the  death  of  the  decedent,  and  shall  at  once  become  a  lien 
upon  said  property,  and  be  and  remain  a  lien  until  paid. 
{As  amended  April  20, 1894.] 

§  2.  When  any  person  shall  bequeath  or  devise  any  prop- 
erty to  or  for  the  use  of  father,  mother,  husband,  wife, 
brother,  sister,  niece,  nephew,  lineal  descendant  and  adopted 
child,  the  lineal  descendant  of  any  adopted  child,  the  wife 
or  widow  of  a  son,  or  the  husband  of  a  daughter,  during 
life  or  for  a  term  of  years,  and  the  remainder  to  a  collateral 
heir,  or  to  a  stranger  to  the  blood,  the  value  of  the  prior 
estate  shall,  within  sixty  days  after  the  death  of  the  tes- 


490  appendix  of  statutes.  [Ohio,  VI.  a. 

tator,  be  appraised  in  the  manner  hereinafter  provided, 
and  deducted,  together  with  the  sum  of  two  hundred  dollars, 
from  the  appraised  value  of  such  property.  [As  amended 
April  20,  181)4.] 

§  3.  Whenever  a  decedent  appoints  one  or  more  executors 
or  trustees,  and  in  lieu  of  their  allowance  makes  a  bequest 
or  devise  of  property  to  them  which  would  otherwise  be 
liable  to  said  tax,  or  appoints  them  his  residuary  legatees, 
and  said  bequests,  devises,  or  residuary  legacies  exceed  what 
would  be  a  reasonable  compensation  for  their  services,  such 
excess  shall  be  liable  to  such  tax,  and  the  court  of  probate 
having  jurisdiction  of  their  accounts  shall  fix  such  compen- 
sation. 

§  4.  All  taxes  imposed  by  this  act  shall  be  paid  into  the 
county  treasury  of  the  county  in  which  the  court  having  ju- 
risdiction of  the  estate  or  accounts  is  situated  by  the  exec- 
utors, administrators  or  trustees,  or  other  persons  charged 
with  the  payment  thereof,  and  if  said  taxes  are  not  paid 
within  one  year  after  the  death  of  said  decedent,  interest  at 
the  rate  of  eight  per  centum  shall  be  thereafter  charged 
and  collected  thereon,  and  if  said  taxes  are  not  paid  at  the 
expiration  of  eighteen  months  after  the  death  of  said  dece- 
dent, it  shall  be  the  duty  of  the  prosecuting  attorney  of  the 
county  wherein  said  taxes  remain  unpaid,  to  institute  the 
necessary  proceedings  to  collect  the  same  in  the  court  of 
common  pleas  of  such  county,  after  first  being  duly  notified 
in  writing  by  the  probate  judge  of  said  county  of  the  non- 
payment of  such  taxes,  and  it  is  hereby  made  the  duty  of 
the  probate  judge  to  give  such  notice  in  writing;  but  if  said 
taxes  are  paid  before  the  expiration  of  one  year  after  the 
death  of  said  decedent,  a  discount  at  the  rate  of  one  per 
centum  per  month  for  each  full  month  that  payment  shall 
have  been  made  prior  to  the  expiration  of  said  year,  shall 
be  allowed  on  the  amount  of  taxes  found  to  be  due  under  the 
provisions  of  this  act.     [As  amended  April  20,  1894.] 

§  5.  Any  administrator,  executor,  or  trustee,  having  in 
charge  or  trust  any  property  subject  to  such  tax,  shall  de- 
duct the  tax  therefrom,  or  shall  collect  the  tax  thereon  from 
the  legatee  or  person  entitled  to  said  property,  and  he  shall 
not  deliver  any  specific  legacy  or  property  subject  to  said  tax 
to  any  person  until  he  has  collected  the  tax  thereon. 

§  6.  Whenever  any  legacies  subject  to  said  tax  shall  be 
charged  upon  or  payable  out  of  any  real  estate,  the  heir  or 
devisee,  before  paying  the  same,  shall  deduct  said  tax  there- 
from and  pay  it  to  the  executor,  administrator,  or  trustee. 


Ohio,  VI.  a  ]  appendix  of  statutes.  491 

and  the  same  shall  remain  a  charge  upon  said  real  estate 
until  it  is  paid;  and  payment  thereof  shall  be  enforced  by 
the  executor,  administrator,  or  trustee,  in  the  same  manner 
as  the  payment  of  the  legacy  itself  could  be  enforced. 

§  7.  If  any  such  legacy  be  given  in  money  to  any  person  for 
a  limited  period,  such  administrator,  executor  or  trustee 
shall  retain  the  tax  on  the  whole  amount;  but  if  it  be  not  in 
money,  he  shall  make  an  application  to  the  court  having 
jurisdiction  of  his  accounts  to  make  an  apportionment,  if  the 
case  require  it,  of  the  sum  to  be  paid  into  his  hands  by  such 
legatee  on  account  of  said  tax  and  for  such  further  order  as 
the  case  may  require. 

§  8.  All  administrators,  executors  and  trustees  shall  have 
power  to  sell  so  much  of  the  estate  of  the  deceased  as  will 
enable  them  to  pay  said  tax  in  the  same  manner  as  they  may 
be  empowered  to  do  for  the  payment  of  his  debts. 

§  9.  Within  ten  days  after  the  filing  of  the  inventory  of 
every  such  estate,  any  part  of  which  may  be  subject  to  a 
tax  under  the  provisions  of  this  act,  the  judge  or  the  court  of 
probate  in  which  such  inventory  is  filed,  shall  make  and  de- 
liver to  the  county  auditor  of  any  such  county,  a  copy  of  such 
inventory;  or,  if  the  same  can  be  conveniently  separated,  a 
copy  of  such  part  of  such  estate,  with  the  appraisal  thereof; 
the  county  auditor  shall  certify  the  value  of  said  estate,  sub- 
ject to  taxation  hereunder  and  the  amount  of  taxes  due 
therefrom,  to  the  county  treasurer,  who  shall  collect  such 
taxes,  and  thereupon  place  twenty-five  per  centum  thereof  to 
the  credit  of  the  county  expense  fund  of  said  county,  and  pay 
seventy-five  per  centum  thereof  into  the  state  treasury,  to 
the  credit  of  the  general  revenue  fund,  at  the  time  of  making 
his  semi-annual  settlement.      [As  amended  April  20,  1894.] 

§  10.  Whenever  any  of  the  real  estate  of  a  decedent  shall 
so  pass  to  another  person  as  to  become  subject  to  said  tax, 
the  executor,  administrator  or  trustee  of  the  decedent  shall 
inform  the  probate  judge  thereof  within  six  months  after  he 
has  assumed  the  duties  of  his  trust,  or  if  the  fact  is  not 
known  to  him  within  that  time,  then  within  one  month  from 
the  time  that  it  does  become  so  known  to  him. 

§  11.  Whenever  for  any  reason  the  devisee,  legatee  or  heir 
who  has  paid  any  such  tax  shall  refund  any  portion  of  the 
property  on  which  it  was  paid,  or  it  shall  be  judicially  de- 
termined that  the  whole  or  any  [part  of]  such  tax  ought  not 
to  have  been  paid,  said  tax,  or  the  due  proportional  part  of 
said  tax,  shall  be  paid  back  to  him  by  the  executor,  adminis- 
trator or  trustee. 


492  appendix  of  statutes.  [Ohio,  VI.  a. 

§  12.  The  value  of  such  property  as  may  be  subject  to  said 
tax  shall  be  its  actual  market  value  as  found  by  the  court 
of  probate;  but  the  state,  through  the  prosecuting  attorney 
of  the  proper  count}',  or  any  person  interested  in  the  succes- 
sion to  said  property,  may  apply  to  the  court  of  probate  hav- 
ing jurisdiction  of  the  estate;  and  on  such  application  the 
court  shall  appoint  three  disinterested  persons,  who,  being 
first  sworn,  shall  view  and  appraise  such  property  at  its 
actual  market  value  for  the  purposes  of  said  tax,  and  shall 
make  return  thereof  to  said  court,  which  return  may  be 
accepted  by  said  court  in  the  same  manner  as  the  original 
inventory  of  such  estate  is  accepted,  and  if  so  accepted  it 
shall  be  binding  upon  the  person  by  whom  this  tax  is  to  be 
paid,  and  upon  the  state.  The  fees  of  the  appraisers  shall 
be  fixed  by  the  judge  of  probate  and  paid  out  of  the  county 
treasury  upon  the  warrant  of  the  county  auditor.  In  case 
of  an  annuity  or  life  estate,  the  value  thereof  shall  be  de- 
termined by  the  so-called  actuaries'  combined  experience 
tables  and  five  per  centum  compound  interest. 

§  13.  The  court  of  probate  having  either  principal  or 
auxiliary  jurisdiction  of  the  settlement  of  the  estate  of  the 
decedent,  shall  have  jurisdiction  to  hear  and  determine  all 
questions  in  relation  to  said  tax  that  may  arise,  affecting 
any  devise,  legacy  or  inheritance  under  this  act,  subject  to 
appeal  as  in  other  cases,  and  the  prosecuting  attorney  shall 
represent  the  interests  of  the  state  in  any  such  proceedings. 

§  14.  The  judge  of  each  probate  court  shall,  as  often  as 
once  in  six  months,  render  to  the  county  auditor  a  statement 
of  the  property  within  the  jurisdiction  of  his  court  that  has 
become  subject  to  said  tax  during  such  period,  the  number 
and  amount  of  such  taxes  as  will  accrue  during  the  next  six 
months,  so  far  as  the  same  can  be  determined  from  the  pro- 
bate records,  and  the  number  and  amount  of  such  taxes 
as  are  due  and  unpaid;  and  each  probate  judge  shall  keep  a 
separate  record,  in  a  book  to  be  provided  for  that  purpose,  of 
all  cases  arising  under  the  provisions  of  this  act.  [As 
amended  April  20,  1894.] 

§  15.  The  fees  of  all  officers  having  duties  to  perform  un- 
der the  provisions  of  this  act,  shall  be  paid  by  the  county 
from  the  county  expense  fund  thereof,  and  shall  be  the  same 
as  now  allowed  by  law  for  similar  services;  in  the  calcula- 
tion of  amounts  due  the  state,  seventy-five  per  centum  of 
the  cost  of  collection  and  other  necessary  and  legitimate  ex- 
penses incurred  by  the  county  in  the  collection  of  such  taxes, 
shall  be  charged  to  the  state  and  deducted  from  the  amount 


Ohio,  VI.  a.,  b.]      appendix  of  statutes.  493 

of  taxes  to  be  paid  into  the  state  treasury.  [As  amended 
April  20,  1894] 

j  L6.  Xo  final  settlement  of  the  account  of  any  executor, 
administrator  or  trustee  shall  be  accepted  or  allowed  by  the 
court  of  probate  unless  it  shall  show,  and  the  judge  of  said 
court  shall  find,  that  all  taxes  imposed  by  the  provisions  of 
this  act  upon  any  property  or  interest  therein,  belonging  to 
the  estate  to  be  settled  by  said  account,  shall  have  been  paid; 
and  the  receipt  of  the  county  treasurer  shall  be  the  proper 
voucher  for  such  payment. 

§  17.  In  the  foregoing  act  the  word  "person"  shall  be  con- 
strued to  include  the  plural  as  well  as  the  singular,  and 
artificial  as  well  as  natural  persons;  the  word  "property" 
shall  be  construed  to  include  both  real  and  personal  estate, 
and  any  form  of  interest  therein  whatsoever,  including  an- 
nuities. 

§  18.  This  act  shall  take  effect  and  be  in  force  from  and 
after  its  passage. 

(b)  Laws  1894,  P.  166. 

An  act  to  impose  a  direct-inheritance  tax. 
Passed  April  20,  1S94. 

§  1.  Be  it  enacted  by  the  general  assembly  of  the  state  of 
Ohio,  that  all  property  within  the  jurisdiction  of  this  state, 
and  any  interest  therein,  whether  belonging  to  inhabitants 
of  this  state  or  not,  and  whether  tangible  or  intangible,  in- 
cluding annuities,  which  shall  pass  by  will  or  by  the  in- 
testate laws  of  this  state,  or  by  deed,  grant,  sale,  or  gift  made 
or  intended  to  take  effect  in  possession  or  enjoyment  after 
the  death  of  the  grantor,  to  the  use  of  the  father,  mother, 
husband,  wife,  brother,  sister,  niece,  nephew,  lineal  descend- 
ant, adopted  child,  or  person  recognized  as  an  adopted  child 
and  made  a  legal  heir  under  the  provisions  of  section  4182 
of  the  Revised  Statutes  of  Ohio,  or  the  lineal  descendant 
thereof,  the  lineal  descendant  of  any  adopted  child,  the  wife 
or  widow  of  a  son,  the  husband  of  a  daughter  of  decedent, 
or  to  any  one  in  trust  for  such  person  or  persons,  shall  be 
liable  to  a  tax  as  follows,  to  wit:  When  the  value  of  the 
entire  property  of  such  decedent  exceeds  the  sum  of  twenty 
thousand  dollars  and  does  not  exceed  the  sum  of  fifty  thou- 
sand dollars,  one  per  cent;  when  it  exceeds  fifty  thousand 
dollars  and  does  not  exceed  one  hundred  thousand  dollars, 
one  and  one-half  per  cent;  when  it  exceeds  one  hundred  thou- 


494  APrENDix  of  statutes.  [Ohio,  VI.  b. 

sand  dollars  and  does  not  exceed  two  hundred  thousand  dol- 
lars, two  per  cent.;  when  it  exceeds  two  hundred  thousand 
dollars  and  does  not  exceed  three  hundred  thousand  dollars, 
three  per  cent.;  when  it  exceeds  three  hundred  thousand 
dollars  and  does  not  exceed  five  hundred  thousand  dollars, 
three  and  one-half  per  cent.;  when  it  exceeds  five  hundred 
thousand  dollars  and  does  not  exceed  one  million  dollars, 
four  per  cent;  and  when  it  exceeds  one  million  dollars,  five 
per  cent. ;  seventy-five  per  cent  of  such  tax  to  be  for  the  use 
of  the  state,  and  twenty-five  per  cent,  for  the  use  of  the 
county  wherein  the  same  is  collected;  and  all  administrators, 
executors  and  trustees,  shall  be  liable  for  all  such  taxes, 
with  lawful  interest,  as  hereinafter  provided,  until  the  same 
shall  have  been  paid  as  hereinafter  directed.  Such  taxes  shall 
become  due  and  payable  immediately  upon  the  death  of  the 
decedent,  and  shall  at  once  become  a  lien  upon  said  property. 

§  2.  All  taxes  imposed  by  this  act  shall  be  paid  into  the 
county  treasury  of  the  county  in  which  the  court  having 
jurisdiction  of  the  estate  or  accounts  is  situated,  by  the  ex- 
ecutors, administrators  or  trustees,  or  other  persons  char- 
ged with  the  payment  thereof,  and  if  said  taxes  are  not 
paid  within  one  year  after  the  death  of  said  decedent,  in- 
terest at  the  rate  of  eight  per  centum  shall  be  thereafter 
charged  and  collected  thereon;  and  if  said  taxes  are  not 
paid  at  the  expiration  of  eighteen  months  after  the  death 
of  said  decedent,  it  shall  be  the  duty  of  the  prosecuting 
attorney  of  the  county  wherein  said  taxes  remain  unpaid, 
to  institute  the  necessary  proceedings  to  collect  the  same 
in  the  court  of  common  pleas  of  such  county,  after  first 
being  duly  notified  in  writing  by  the  probate  judge  of  said 
county  of  the  non-payment  of  such  taxes,  and  it  is  hereby 
made  the  duty  of  the  probate  judge  to  give  such  notice  in 
writing;  but  if  said  taxes  are  paid  before  the  expiration 
of  one  year  after  the  death  of  said  decedent,  a  discount  at 
the  rate  of  one  per  cent,  per  month  for  each  full  month 
that  payment  shall  have  been  made  prior  to  the  expira- 
tion of  said  year,  shall  be  allowed  on  the  amount  of  taxes 
found  to  be  due  under  the  provisions  of  this  act. 

§  3.  Any  administrator,  executor  or  trustee  having  in 
charge  or  trust  any  property  subject  to  such  tax,  shall  de- 
duct the  tax  therefrom,  or  shall  collect  the  tax  thereon 
from  the  legatee  or  person  entitled  to  said  property,  and 
he  shall  not  deliver  any  specific  legacy  or  property,  subject 
to  said  tax,  to  any  person  until  he  has  collected  the  tax 
thereon. 


Ohio,  VI.  b.]  APPENDIX    OF   STATUTES.  495 

§  4.  Whenever  any  legacies  subject  to  said  tax  shall  be 
charged  upon  or  payable  out  of  any  real  estate,  the  hei/ 
or  devisee,  before  paving  the  same,  shall  deduct  said  1ax 
therefrom  and  pay  it  to  the  executor,  administrator  or  trus- 
tee, and  the  same  shall  remain  a  lien  upon  said  real  estate 
until  it  is  paid;  and  payment  thereof  shall  be  enforced 
by  the  executor,  administrator  or  trustee,  in  the  same 
manner  as  the  payment  of  the  legacy  itself  could  be  en- 
forced. 

§  5.  All  administrators,  executors  and  trustees  shall  have 
power  to  sell  so  much  of  the  estate  of  the  deceased  as  will 
enable  them  to  pay  said  tax,  in  the  same  manner  as  they 
may  be  empowered  to  do  for  the  payment  of  his  debts. 

§  6.  Within  ten  days  after  the  filing  of  the  inventory  of 
every  estate  subject  to  a  tax  under  the  provisions  of  this  act, 
the  judge  or  the  court  of  probate  in  which  such  inventory 
is  filed,  shall  make  and  deliver  to  the  county  auditor  of 
any  such  county,  a  copy  of  such  inventory,  with  the  ap- 
praisal of  said  estate;  the  county  auditor  shall  certify  the 
value  of  said  estate  and  the  amount  of  taxes  due  therefrom 
to  the  county  treasurer,  who  shall  collect  such  taxes  and 
thereupon  place  twenty-five  per  cent,  thereof  to  the  credit 
of  the  county  expense  fund  of  said  county,  and  pay  sev- 
enty-five per  cent  thereof  into  the  state  treasury,  to  the 
credit  of  the  general  revenue  fund,  at  the  time  of  making 
his  semi-annual  settlement. 

§  7.  Whenever  any  of  the  real  estate  of  a  decedent  shall 
so  pass  to  another  person  as  to  become  subject  to  said  tax, 
the  executor,  administrator  or  trustee  of  the  decedent  shall 
inform  the  probate  judge  thereof  within  six  months  after  he 
has  assumed  the  duties  of  his  trust,  or  if  the  fact  is  not 
known  to  him  within  that  time,  then  within  one  month 
from  the  time  that  it  does  become  so  known  to  him. 

§  8.  Whenever  for  any  reason  the  devisee,  legatee  or  heir 
who  has  paid  any  such  tax  shall  refund  any  portion  of  the 
property  on  which  it  was  paid,  or  it  shall  be  judicially  de- 
termined that  the  whole  or  any  part  of  such  tax  ought  not 
to  have  been  paid,  said  tax,  or  the  due  proportional  part  of 
said  tax,  shall  be  paid  back  to  him  by  the  executor,  admin- 
istrator or  trustee. 

§  9.  The  value  of  such  property  as  may  be  subject  to  said 
tax  shall  be  its  actual  market  value  as  found  by  the  court 
of  probate;  but  the  state,  through  the  prosecuting  attor- 
ney of  the.  proper  county,  or  any  person  interested  in  the 
succession  of  [to]  said  property,  may  apply  to  the  court  of 


496  APPENDIX    OF    STATUTES.  [Ohio,  VI.  b- 

probate  having  jurisdiction  of  the  estate;  and  on  such  ap- 
plication the  court  shall  appoint  three  disinterested  per- 
sons, who,  being  first  sworn,  shall  view  and  appraise  such 
property  at  its  actual  market  value  for  the  purposes  of  said 
tax,  and  shall  make  return  thereof  to  said  court,  which  re- 
turn may  be  accepted  by  said  court  in  the  same  manner 
as  the  original  inventory  of  such  estate  is  accepted,  and  if 
so  accepted  it  shall  be  binding  upon  the  person  by  whom 
this  tax  is  to  be  paid,  and  upon  the  state.  The  fees  of 
the  appraisers  shall  be  fixed  by  the  judge  of  probate  and 
paid  out  of  the  county  treasury  upon  the  warrant  of  the 
county  auditor.  In  case  of  an  annuity  or  life  estate,  the 
value  thereof  shall  be  determined  by  the  so-called  actuaries' 
combined  experience  tables  and  five  per  centum  compound 
interest. 

§  10.  The  court  of  probate,  having  either  principal  or 
auxiliary  jurisdiction  of  the  settlement  of  the  estate  of  the 
decedent,  shall  have  jurisdiction  to  hear  and  determine 
all  questions  in  relation  to  said  tax  that  may  arise,  affect- 
ing any  devise,  legacy  or  inheritance  under  this  act,  sub- 
ject to  appeal  as  in  other  cases,  and  the  prosecuting  attor- 
ney shall  represent  the  interests  of  the  state  in  any  such 
proceedings. 

§  11.  The  judge  of  each  probate  court  shall,  as  often  as 
once  in  six  months,  render  to  the  county  auditor  a  state- 
ment of  the  property  within  the  jurisdiction  of  his  court 
that  has  become  subject  to  said  tax  during  such  period, 
the  number  and  amount  of  such  taxes  as  will  accrue  during 
the  next  six  months,  so  far  as  the  same  can  be  determined 
from  the  probate  records,  and  the  number  and  amount  of 
such  taxes  as  are  due  and.  unpaid,  and  each  probate  judge 
shall  keep  a  separate  record,  in  a  book  to  be  provided  for 
that  purpose,  of  all  cases  and  proceedings  arising  under 
the  provisions  of  this  act. 

§  12.  The  fees  of  all  officers  having  duties  to  perform 
under  the  provisions  of  this  act,  shall  be  paid  by  the  county 
from  the  county  expense  fund  thereof,  and  shall  be  the  same 
as  now  allowed  by  law  for  similar  services.  In  the  calcu- 
lation of  amounts  due  the  state,  seventy-five  per  cent, 
of  the  cost  of  collection,  and  other  necessary  and  legitimate 
expenses  incurred  by  the  county  in  the  collection  of  such 
taxes,  shall  be  charged  to  the  state  and  deducted  from  the 
amount  of  taxes  to  be  paid  into  the  state  treasury. 

§  13.  No  final  settlement  of  the  account  of  any  executor, 
administrator  or  trustee  shall  be  accepted  or  allowed  by 


Ohio,  VI.  b.]  APPENDIX    OF    STATUTES.  497 

the  court  of  probate  unless  it  shall  show,  and  the  judge  of 
said  court  shall  find,  that  all  taxes  imposed  by  the  provi- 
sions of  this  act  upon  any  property  or  interest  therein  be- 
longing to  the  estate  to  be  settled  by  said  account  shall 
have  been  paid;  and  the  receipt  of  the  county  treasurer 
shall  be  the  proper  voucher  for  such  payment, 

§  14.  This  act  shall  take  effect  on  its  passage- 
State  of  Ohio,  Office  of  the  Secretary  of  State: 

I,  Samuel  M.  Taylor,  secretary  of  state  of  the  state  of 
Ohio,  hereby  certify  that  the  foregoing  are  correct  copies  of 
the  laws  imposing  taxes  on  collateral  and  direct  inherit- 
ances, passed  January  27,  1893,  and  April  20,  1894,  and 
that  the  same  are  in  full  force  and  effect  as  general  laws 
of  this  state. 

[Seal.]  Samuel  M.  Taylor,  Secretary  of  State. 

LAW  INHER. 32 


498  APPENDIX    OF   STATUTES.  [Conn. ,  VII.  a. 

VII.     CONNECTICUT. 

(a)  Laws  1889,  P.  106,  Ch.  CLXXX. 
An  act  imposing  a  collateral  inheritance  tax. 

Be  it  enacted  by  the  senate  and  house  of  representatives  in 
general  assembly  convened: 

Collateral  inheritance  tax  imposed. 

§  1.  All  property  within  the  jurisdiction  of  this  state,  and 
any  interest  therein,  whether  belonging  to  inhabitants  of 
this  state  or  not,  and  whether  tangible  or  intangible,  which 
shall  pass  by  will  or  by  the  intestate  laws  of  this  state,  or 
by  deed,  grant,  sale  or  gift,  made  or  intended  to  take  effect 
in  possession  or  enjoyment  after  the  death  of  the  grantor,  to 
any  person  in  trust  or  otherwise,  other  than  to  or  for  the 
use  of  the  father,  mother,  husband,  wife,  lineal  descendant, 
adopted  child,  the  lineal  descendant  of  any  adopted  child, 
the  wife  or  widow  of  a  son,  the  husband  of  the  daughter  of  a 
decedent,  or  some  charitable  purpose,  or  purpose  strictly 
public  within  this  state,  shall  be  liable  to  a  tax  of  five  per 
centum  of  its  value,  above  the  sum  of  one  thousand  dollars, 
for  the  use  of  the  state,  and  all  administrators,  executors  and 
trustees,  and  any  such  grantee  under  a  conveyance  made 
during  the  grantor's  life,  shall  be  liable  for  all  such  taxes, 
with  lawful  interest  as  hereinafter  provided,  until  the  same 
shall  have  been  paid  as  hereinafter  directed.  [Brothers  and 
sisters  of  decedent  are  now  exempt.  Chapter  257,  Laws 
1893,  p.  406.] 

Tax  on  remainderman,  how  ascertained. 

§  2.  When  any  person  shall  bequeath  or  devise  any  prop- 
erty to  or  for  the  use  of  father,  mother,  husband,  wife,  lineal 
descendant,  an  adopted  child,  the  lineal  descendant  of  any 
adopted  child,  the  wife  or  widow  of  a  son,  or  the  husband 
of  a  daughter,  during  life  or  for  a  term  of  years,  and  the  re- 
mainder to  a  collateral  heir  or  to  a  stranger  to  the  blood, 
the  value  of  the  prior  estate  shall,  within  sixty  days  after 
the  death  of  the  testator,  be  appraised  in  the  manner  here- 
inafter provided,  and  deducted,  together  with  the  sum  of 
one  thousand  dollars,  from  the  appraised  value  of  such  prop- 


Conn.,  VII.  a.]        appendix  of  statutes.  499 

ertj,  and  the  tax  on  the  remainder  shall  be  payable  one  year 
from  the  death  of  said  testator,  and  together  with  any  inter- 
est that  may  accrue  on  the  same,  be  and  remain  a  lien  on 
said  property  till  paid  to  the  state. 

On  legacy  to  executor  or  trustee. 

§  3.  Whenever  a  decedent  appoints  one  or  more  executors 
or  trustees,  and  in  lieu  of  their  allowance  makes  a  bequest 
or  devise  of  property  to  them  which  would  otherwise  be 
liable  to  said  tax,  or  appoints  them  his  residuary  legatees, 
and  said  bequests,  devises  or  residuary  legacies  exceed 
what  would  be  a  reasonable  compensation  for  their  services, 
such  excess  shall  be  liable  to  such  tax,  and  the  court  of  pro- 
bate having  jurisdiction  of  their  accounts  shall  fix  such 
compensation. 

Tax,  when  payable. 

§  4.  All  taxes  imposed  by  this  act  shall  be  payable  to  the 
treasurer  of  the  state  by  the  executors,  administrators  or 
trustees,  one  year  from  the  death  of  said  testator,  or  intes- 
tate, or  the  qualification  of  said  trustee;  and  if  the  same  are 
not  so  paid,  interest  at  the  rate  of  nine  per  centum  shall  be 
charged  them  and  collected  from  the  time  said  tax  became 
due. 

Administrator  to  collect  or  retain  tax. 

§  5.  Any  administrator,  executor  or  trustee  having  in 
charge  or  trust  any  property  subject  to  said  tax,  shall  deduct 
the  tax  therefrom,  or  shall  collect  the  tax  thereon  from  the 
legatee  or  person  entitled  to  said  property,  and  he  shall  not 
deliver  any  specific  legacy  or  property  subject  to  said  tax 
to  any  person  until  he  has  collected  the  tax  thereon. 

Tax  on  legacy  charge  on  real  estate. 

§  6.  Whenever  any  legacies  subject  to  said  tax  shall  be 
charged  upon  or  payable  out  of  any  real  estate,  the  heir  or 
devisee,  before  paying  the  same,  shall  deduct  said  tax  there- 
from and  pay  it  to  the  executor,  administrator  or  trustee, 
and  the  same  shall  remain  a  charge  upon  said  real  estate 
until  it  is  paid;  and  payment  thereof  shall  be  enforced  by 
the  executor,  administrator  or  trustee,  in  the  same  manner 
as  the  payment  of  the  legacy  itself  could  be  enforced. 


500  appendix  of  statutes.        [Conn. ,  VII.  a. 

Tax  on  estate  for  years. 

§  7.  If  any  such,  legacy  be  given  in  money  to  any  person 
for  a  limited  period,  such  administrator,  executor  or  trustee, 
shall  retain  the  tax  on  the  whole  amount;  but  if  it  be  not 
in  money,  he  shall  make  an  application  to  the  court  having 
jurisdiction  of  his  accounts  to  make  an  apportionment,  if 
the  case  require  it,  of  the  sum  to  be  paid  into  his  hands  by 
such  legatee  on  account  of  said  tax,  and  for  such  further  or- 
der as  the  case  may  require. 

Sale  of  estate  to  pay  tax. 

§  8.  All  administrators,  executors  and  trustees  shall  have 
power  to  sell  so  much  of  the  estate  of  the  deceased  as  will 
enable  them  to  pay  said  tax  in  the  same  manner  as  they 
may  be  empowered  to  do  for  the  payment  of  his  debts. 

Inventory  of  estate  subject  to  tax  to  be  sent  state 
treasurer. 

§  9.  A  copy  of  the  inventory  of  every  estate,  any  part  of 
which  may  be  subject  to  a  tax  under  the  provisions  of  this 
act,  or  if  the  same  can  be  conveniently  separated,  then  a 
copy  of  such  part  of  such  estate,  with  the  appraisal  thereof, 
shall  be  sent  by  mail,  by  the  clerk  or  the  judge  of  the  court 
of  probate  in  which  such  inventory  is  filed,  to  the  treasurer 
of  the  state  within  ten  days  after  the  same  is  filed.  The 
fees  for  such  copy  shall  be  paid  by  the  executor,  administra- 
tor or  trustee. 

Duty  of  executor,  &c,  as  to  real  estate  becoming 
subject  to  tax. 

§  10.  Whenever  any  of  the  real  estate  of  a  decedent  shall 
so  pass  to  another  person,  as  to  become  subject  to  said  tax, 
the  executor,  administrator  or  trustee  of  the  decedent  shall 
inform  the  state  treasurer  thereof  within  six  months  after 
he  has  assumed  the  duties  of  his  trust,  or  if  the  fact  is  not 
known  to  him  within  that  time,  then  within  one  month  from 
the  time  that  it  does  become  so  known  to  him. 

Refunding  over-paid  tax. 

§  11.  Whenever,  for  any  reason,  the  devisee,  legatee  or 
heir  who  has  paid  any  such  tax  shall  refund  any  portion  of 
the  property  on  which  it  was  paid,  or  it  shall  be  judicially 


Conn.,  VII.  a. J        appendix  of  statutes.  501 

determined  that  the  whole  or  any  part  of  such  tax  ought  not 
to  have  been  paid,  said  tax,  or  the  due  proportional  part  of 
said  tax,  shall  be  paid  back  to  him  by  the  executor,  adminis- 
trator or  trustee. 

Value  of  property,  how  ascertained. 

§  12.  The  value  of  such  property  as  may  be  subject  to  said 
tax  shall  be  its  actual  value  as  found  by  the  court  of  probate, 
but  the  state  treasurer,  or  any  person  interested  in  the  suc- 
cession to  said  property,  may  apply  to  the  court  of  probate 
having  jurisdiction  of  the  estate,  and  on  such  application 
said  court  shall  appoint  three  disinterested  persons  who,  be- 
ing first  sworn,  shall  view  and  appraise  such  property  at  its 
actual  market  value,  for  the  purposes  of  said  tax,  and  shall 
make  return  thereof  to  said  court,  which  return  may  be  ac- 
cepted by  said  court  in  the  same  manner  as  the  original  in- 
ventory of  such  estate  is  accepted,  and  if  so  accepted  it 
shall  be  binding  upon  the  person  by  whom  this  tax  is  to  be 
paid,  and  by  the  state.  And  the  fees  of  the  appraiser  shall 
be  fixed  by  the  judge  of  probate  and  paid  by  the  executor, 
administrator  or  trustee.  In  case  of  an  annuity  or  life  es- 
tate the  value  thereof  shall  be  determined  by  the  so-called 
actuaries'  combined  experience  tables  and  five  per  centum 
compound  interest 

Jurisdiction   of  probate   court  as   to  questions  rel- 
ative to  tax. 

§  13.  The  court  of  probate  having  either  principal  or  an- 
cillary jurisdiction  of  the  settlement  of  the  estate  of  the  de- 
cedent, shall  have  jurisdiction  to  hear  and  determine  all 
questions  in  relation  to  said  tax  that  may  arise  affecting  any 
devise,  legacy  or  inheritance  under  this  act  subject  to  appeal 
as  in  other  cases,  and  the  state  treasurer  shall  represent  the 
interests  of  the  state  in  any  such  proceedings. 

Statements  to  be  rendered  the  treasurer  by  pro- 
bate judges. 

§  14.  The  judge  of  each  probate  district  shall,  as  often  as 
once  in  six  months,  render  to  the  state  treasurer  a  state- 
ment of  the  property  within  the  jurisdiction  of  his  court  that 
has  become  subject  to  such  tax  during  such  period,  the  num- 
ber and  amount  of  such  taxes  as  will  accrue  during  the  next 
six  months,  so  far  as  the  same  can  be  ascertained  from  the 


502  appendix  of  statutes.        [Conn. ,  VII.  a. 

probate  records,  and  the  number  and  amount  of  such,  taxes 
as  are  due  and  unpaid. 

Probate  fees. 

§  15.  The  fees  of  courts  of  probate  for  the  duties  required 
of  them  by  this  act  shall  be  for  each  order,  appointment,  de- 
cree, judgment  or  approval  of  inventory  or  report  required 
hereunder,  one  dollar;  for  the  filing  and  endorsement  of  each 
paper,  and  for  copies  of  records,  the  fees  that  are  now  al- 
lowed by  law  for  the  same.  And  the  administrators,  exec- 
utors, trustees  or  other  persons  paying  said  tax  shall  be  en- 
titled to  deduct  the  amount  of  all  such  fees  paid  to  the  court 
of  probate  from  the  amount  of  said  tax  to  be  paid  to  the 
treasurer  of  the  state. 

Final  settlement  of  estate  not  to  be  allowed  until. 

§  16.  No  final  settlement  of  the  account  of  any  executor, 
administrator  or  trustee,  shall  be  accepted  or  allowed  by  any 
court  of  probate  unless  it  shall  show,  and  the  judge  of  said 
court  shall  find,  that  all  taxes  imposed  by  the  provisions  of 
this  act,  upon  any  property  or  interest  therein  belonging  to 
the  estate  to  be  settled  by  said  account,  shall  have  been 
paid,  and  the  receipt  of  the  treasurer  of  the  state  for  such 
tax  shall  be  the  proper  voucher  for  such  payment. 

Definitions. 

§  17.  In  the  foregoing  act  the  word  "person"  shall  be  con- 
strued to  include  the  plural  as  well  as  the  singular,  and  arti- 
ficial as  well  as  natural  persons;  the  word  "property"  shall 
be  construed  to  include  both  real  and  personal  estate,  and 
any  forms  of  interest  therein  whatsoever,  including  annui- 
ties; and  the  words  "charitable  purpose"  shall  be  construed 
to  include  gifts  to  any  educational,  benevolent,  ecclesiastical 
or  missionary  corporation,  association  or  object. 

Approved  June  5,  1889. 


Md. ,  VIII,  a.]    appendix  of  statutes.  503 


VIII.     MARYLAND. 

(a)  Maryland  Code,  Vol.  2,  1888,  P.  1242. 

COLLATERAL  INHERITANCE  TAX.1 

§  102.  All  estates,  real,  personal  and  mixed,  money,  public 
and  private  securities  for  money  of  every  kind,  passing  from 
any  person  who  may  die  seized  and  possessed  thereof,  being 
in  this  state,  or  any  part  of  such  estate  or  estates,  money 
or  securities,  or  interest  therein,  transferred  by  deed,  will, 
grant,  bargain,  gift  or  sale,  made  or  intended  to  take  effect 
in  possession  after  the  death  of  the  grantor,  bargainor,  de- 
visor or  donor,  to  any  person  or  persons,  bodies  politic  or 
corporate,  in  trust  or  otherwise,  other  than  to  or  for  the  use 
of  the  father,  mother,  husband,  wife,  children  and  lineal  de- 
scendants of  the  grantor,  bargainor,  testator,  donor  or  in- 
testate, shall  be  subject  to  a  tax  of  two  and  a  half  per  cent- 
um on  every  hundred  dollars  of  the  clear  value  of  such  es- 
tates, money  or  securities;  and  all  executors  and  adminis- 
trators shall  only  be  discharged  from  liability  for  the  amount 
of  such  tax,  the  payment  of  which  they  may  be  charged  with, 
by  paying  the  same  for  the  use  of  this  state,  as  hereinafter 
directed;  provided,  that  no  estate  which  may  be  valued  at 
a  less  sum  than  five  hundred  dollars,  shall  be  subject  to  the 
tax  imposed  by  this  section.2 

§  103.  Every  executor  or  administrator,  to  whom  adminis- 
tration may  be  granted,  before  he  pays  any  legacy,  or  dis- 
tributes the  shares  of  any  estate  liable  to  the  tax  imposed 
by  the  preceding  section,  shall  pay  to  the  register  of  wills 
of  the  proper  county  or  city,  two  and  a  half  per  centum  of 
every  hundred  dollars  he  may  hold  for  distribution  among 
the  distributees  or  legatees,  and  at  that  rate  for  any  less 
sum,  for  the  use  of  the  state;  this  section  shall  not  be  con- 
strued so  as  to  release  any  tax  already  fixed  on  any  collat- 
eral inheritance,  distributive  share  or  legacy.3 

i  Pub.  Gen.  Laws  1860,  art.  81,  §  124;  Id.  1844,  c.  237,  §  1;  Id.  1864, 
C.  200;   Id.  1874,  c.  483,  §  113;   Id.  1S80,  c.  444. 

2  State  v.  Dorsey,  6  Gill,  388;  Tyson  v.  State,  28  Md.  577;  Citizens' 
Nat.  Bank  v.  Sharp.  53  Md.  521;  Pub.  Gen.  Laws  1860,  art.  81,  § 
125;   Id.  1844,  c.  237,  §  2;   Id.  18(54,  c.  200;  Id.  1874,  c.  483,  §  114.     - 

3  State  v.  Dorsey,  6  Gill.  3S8;  Pub.  Gen.  Laws  1860,  art.  81,  §  126; 
Id.  1S44,  c.  237,  §  2;   Id.  1S74,  c.  483,  §  115. 


504  APPENDIX    OF    STATUTES.  [Md. ,  VIII.  f). 

§  104.  When  any  species  of  property  other  than  money  or 
real  estate  shall  be  subject  to  said  tax,  the  tax  shall  be  paid 
on  the  appraised  value  thereof  as  filed  in  the  office  of  the 
register  of  wills  of  the  proper  county  or  city;  and  every  exec- 
utor shall  have  power  under  the  order  of  the  orphans'  court, 
to  sell,  if  necessary,  so  much  of  said  property  as  will  enable 
him  to  pay  said  tax.4 

§  105.  Every  executor  or  administrator  shall,  within  thir- 
teen months  from  the  date  of  his  administration,  pay  said 
tax  on  distributive  shares  and  legacies  in  his  hands,  and  on 
failure  to  do  so,  he  shall  forfeit  his  commissions.5 

§  106.  In  all  cases  where  real  estate  of  any  kind  is  subject 
to  the  said  tax,  the  orphans'  court  of  the  county  in  which 
administration  is  granted  shall  appoint  the  same  persons, 
who  may  have  been  appointed  to  value  the  personal  estate, 
to  appraise  and  value  all  the  real  estate  of  the  deceased 
within  the  state.6 

§  107.  The  form  of  the  warrant  to  such  appraisers  shall  be 
the  same  as  to  appraisers  of  personal  property,  except  that 
the  words  "real  estate"  shall  be  inserted  therein  instead  of 
the  words  "goods,  chattels  and  personal  estate,"  and  the 
words  "price  of  property"  instead  of  the  word  "article,"  and 
the  appraisers  shall  take  the  oath  prescribed  for  appraisers 
of  personal  estate,  except  that  the  words  "real  estate"  shall 
be  substituted  for  the  words  "goods,  chattels  and  personal 
estate,"  and  their  duties  and  proceedings  shall,  in  every  re- 
spect, be  the  same  as  those  of  the  appraisers  of  personal 
estate.7  ' 

§  108.  If  the  estate  or  property  lies  in  more  than  one  coun- 
ty, and  it  is  not  convenient  for  the  appraisers  to  visit  the 
other  county,  the  court  may  appoint  two  appraisers  in  said 
county.8 

§  109.  The  inventory  of  the  real  estate  shall  be  entirely 
separate  and  distinct  from  that  of  the  personal  estate.9 

4  Pub.  Gen.  Laws  1860,  art.  81,  §.  127;  Id.  1845,  c.  202,  §  1;  Id. 
1874,  c.  483,  §  116. 

s  Pub.  Gen.  Laws  1860,  art.  81,  §  128;  Id.  1847,  c.  222,  §  1;  Id. 
1874,  c.  483,  §  117. 

s  Pub.  Gen.  Laws  1860,  art.  81,  §  129;  Id.  1847,  c.  222,  §  1;  Id. 
1874,  c.  483,  §  118. 

i  Pub.  Gen.  Laws  1860,  art.  81,  §'  130;  Id.  1847,  c.  222,  §  1;  Id. 
1874,  c.  483,  §  119. 

e  Pub.  Gen.  Laws  1860,  art.  81,  §  131;  Id.  1847,  c.  222,  §  1;  Id.  1874, 
c.  483,  §  120. 

o  Pub.  Gen.  Laws  1860,  art.  81,  §  132;  Id.  1847,  c.  222,  §  1;  Id. 
1874,  c.  4S3,  §  121. 


Md.,  VIII.  a.]  APPENDIX   OF   STATUTES.  505 

§  110.  On  the  death  or  refusal  of  any  appraiser  to  act,  the 
court  may  appoint  another  in  his  place.10 

§  111.  The  appraisers  shall  return  the  inventory,  when 
completed,  to  the  executor  or  administrator,  whose  duty  it 
shall  be  to  return  the  same  to  the  office  of  the  register  of 
wills,  to  which  the  inventory  of  the  personal  estate  is  return- 
able, and  within  the  same  time  and  under  like  penalty,  and 
shall  make  oath  that  said  inventory  or  inventories  is  or  are  a 
true  and  perfect  inventory  or  inventories  of  all  the  real  es- 
tate of  the  deceased,  within  this  state,  that  has  come  to  his 
knowledge,  and  that,  should  he  thereafter  discover  any  other 
real  estate  belonging  to  the  deceased,  in  this  state,  he  will 
return  an  additional  inventory  thereof.11 

§  112.  The  appraisement  thus  made  shall  be  deemed  and 
taken  to  be  the  true  value  of  the  said  real  estate,  upon  which 
the  said  tax  shall  be  paid.12 

§  113.  The  amount  of  said  tax  shall  be  a  lien  on  said  real 
estate  from  the  death  of  the  decedent,  who  shall  have  died 
seized  and  possessed  thereof,  until  the  same  shall  be  paid.13 

§  114.  The  executor  or  administrator  shall  collect  the  same 
from  the  parties  liable  to  pay  said  tax,  or  their  legal  repre- 
sentatives, within  thirteen  months  from  the  date  of  his  ad- 
ministration, and  pay  the  same  to  the  register  of  wills  of  the 
county  or  city  in  which  administration  is  granted;  and  if 
the  said  parties  shall  neglect  or  fail  to  pay  the  same  within 
that  time,  the  orphans'  court  of  said  county  shall  order  the 
executor  or  administrator  to  sell  for  cash  so  much  of  said 
real  estate  as  may  be  necessary  to  pay  said  tax  and  all  the 
expenses  of  said  sale,  including  the  commissions  of  the  ex- 
ecutor or  administrator  thereon;  and  after  the  report  of 
said  sale,  the  ratification  thereof  and  the  payment  of  the 
purchase  money,  the  executor  or  administrator  may  execute 
a  valid  deed  of  the  estate  sold  and  not  before.14 

§  115.  Whenever  any  estate,  real,  personal  or  mixed,  of  a 
decedent,  shall  be  subject  to  the  tax  mentioned  in  the  thir- 

io  Pub.  Gen.  Laws  1S60,  art.  81,  §  133;  Id.  1847,  c.  222,  §  3;  Id. 
1874,  c.  483,  §  122. 

ii  Pub.  Gen.  Laws  1860,  art.  81,  §  134;  Id.  1847,  c.  222  §  4;  Id 
1874,  c.  483,  §  123. 

12  Pub.  Gen.  Laws  1800,  art.  81,  §  135;   Id.  1844,  c.  237,  §  5;    Id 

1846,  c.  344.  §  2;   Id.  1874,  c.  483,  §  124. 

is  Pub.  Gen.  Laws  1S60,  art.  81,  §  136;  Id.  1847,  c.  222,  §  5;  Id 
1874.  c.  483,  §  125. 

14  Pub.  Gen.  Laws  1860,  art.  81,  §  137;  Id.  1S46,  c.  344,  §  1;  Id. 

1847,  c.  222,  §  6;  Id.  1874,  c.  4S3,  §  126;  Id.  1880,  c.  455. 


506  APPENDIX    OF    STATUTES.  [Md.  ,  VIII.  a. 

teen  preceding  sections,  and  there  be  a  life  estate,  or  inter- 
est for  a  term  of  years,  or  a  contingent  interest  given  to  one 
party,  and  the  remainder  or  reversionary  interest  to  another 
party,  the  orphans1  court  of  the  county  or  city  in  which  the 
administration  is  granted,  shall  determine  in  its  discretion, 
and  at  such  time  as  it  shall  think  proper,  what  proportion 
the  party  entitled  to  said  life  estate,  or  interest,  for  a  term 
of  years,  or  contingent  interest,  shall  pay  of  said  tax;  and 
the  judgment  of  said  court  shall  be  final  and  conclusive;  and 
the  party  entitled  to  said  life  estate,  or  interest  for  a  term 
of  years,  or  other  contingent  interest,  shall,  within  thirty 
days  after  the  date  of  such  determination,  pay  to  the  regis- 
ter of  wills  his  proportion  of  said  tax;  and  thereafter  the 
said  court  shall,  from  time  to  time,  after  the  determination 
of  the  preceding  estate,  and  as  the  remainder  of  said  estate 
shall  vest  in  the  party  or  parties  entitled  in  remainder  or 
reversion,  determine,  in  its  discretion,  what  proportion  of 
the  residue  of  said  tax  shall  be  paid  by  the  party  or  parties 
in  whom  the  estate  shall  so  vest;  and  the  judgment  of  said 
court  shall  be  final  and  each  of  the  parties  successively  en 
titled  in  remainder  or  reversion  shall  pay  his  proportion  of 
said  tax  to  the  register  of  wills  within  thirty  days  after  the 
date  of  such  determination  as  to  him;  and  the  amount  of 
said  tax  shall  be  and  remain  a  lien  upon  such  estate  until 
the  same  shall  be  paid.15 

§  115£.  Whenever  an  interest  in  any  estate,  real,  personal 
or  mixed,  less  than  any  absolute  interest,  shall  be  devised 
or  bequeathed  to  or  for  the  use  and  benefit  of  any  person 
or  object,  not  exempt  from  the  tax  under  section  102  of 
this  article,  then  only  such  interest  so  devised  or  bequeathed 
shall  be  liable  for  said  tax;  and  it  shall  be  the  duty  of  the 
orphans'  court  of  the  county  or  city  in  which  administration 
is  granted,  or  any  other  court  assuming  jurisdiction  over 
such  administration,  to  determine  as  soon  after  administra- 
tion is  granted  as  possible,  on  application  of  such  person 
or  object,  the  value  of  such  interest  liable  for  said  tax,  by 
deducting  from  the  whole  value  of  the  estate  so  much  there- 
of as  shall  be  the  value  of  the  interest  therein  of  any  person 
who,  under  said  section  102  of  this  article,  is  exempt  from 
said  tax,  and  the  residue  thereof  shall  be  the  value  of  said 
interest  upon  which  said  tax  is  payable;  and  said  tax  so 
ascertained,  shall  be  paid  by  such  person  or  object  within 

is  Tyson  v.  State,  28  Md.  577;  Pub.  Gen.  Laws  1SG0,  art.  81,  §: 
138;   Id.  1847,  c.  222,  §  6;  Id.  1S74,  c.  483,  §  127. 


Md.,  VIII.  a.]  APPENDIX    OF    STATUTES.  507 

90  days  from  such  ascertainment,  with  interest  thereon  at 
6  per  cent,  per  annum,  after  the  expiration  of  twelve  (12) 
months  from  the  death  of  the  decedent,  under  whose  will, 
or  by  whose  intestacy  said  interest  is  acquired,  if  said  tax 
has  not  sooner  been  paid,  or  within  90  days  from  the  time 
that  it  shall  be  ascertained  that  such  person  or  object  shall 
be  entitled  to  any  such  interest  in  any  estate;  but  such  tax 
shall  bear  interest  at  the  rate  of  6  per  cent,  per  annum  from 
the  expiration  of  twelve  (12)  months  from  said  death;  but 
if  such  person  or  object  shall  fail  to  pay  said  tax,  as  above 
provided,  then  such  person,  or  object  shall  at  the  time  when 
he,  she  or  it,  comes  into  possession  of  such  estate,  pay  a  tax 
as  provided  for  in  said  section  102,  on  the  whole  value 
thereof.     [As  added  by  chapter  493,  Laws  Md.  1891.] 

§  116..  If  any  of  the  parties  mentioned  in  the  last  preced- 
ing section,  shall  refuse  or  neglect  to  pay  the  several  propor- 
tions, so  decreed  by  the  orphans'  court,  within  thirty  days 
from  the  time  of  such  decree,  the  court  shall  order  and  di- 
rect the  executor  or  administrator  to  sell  all  the  right,  title 
and  interest  of  such  party  in  and  to  said  estate  or  property, 
or  so  much  thereof  as  the  court  may  deem  necessary  to  pay 
his  proportion  of  said  tax  and  all  expenses  of  sale.18 

§  117.  The  bond  of  an  executor  or  administrator  shall  be 
liable  for  all  money  he  may  receive  under  this  article  of 
taxes,  or  for  the  proceeds  of  the  sales  of  real  estate  received 
by  him  thereunder.17 

§  118.  If  any  executor  or  administrator  shall  fail  to  per- 
form any  of  the  duties  imposed  upon  him  by  this  article,  the 
orphans'  court  of  the  county  in  which  the  administration 
was  granted,  may  revoke  his  administration,  and  his  bond 
shall  be  liable,  and  the  same  proceedings  shall  be  had 
against  him  as  if  his  administration  had  been  revoked  for 
any  other  cause.18 

§  119.  The  power  and  duties  of  an  administrator  de  bonis 
non,  or  with  the  will  annexed,  shall  be  the  same  under  this 
article  as  those  of  an  executor  or  administrator,  and  he  shall 
be  subject  to  the  same  liabilities.19 

i6  Pub.  Gen.  Laws  1S60,  art.  81,  §  139;  Id.  1847,  c.  222,  §  7;  Id. 
1874,  c.  4S3,  §  128. 

"  Pub.  Gen.  Laws  1SG0,  art,  81,  §  140;  Id.  1847,  c.  222.  §  8;  Id. 
1874.  c.  483,  §  129. 

is  Pub.  Gen,  Laws  1S60,  art.  81,  §  141;  Id.  1847,  c.  222,  §  9;  Id. 
1874.  c.  483,  §  130. 

is  Pub.  Gen.  Laws  1SG0,  art.  81,  §  142;  Id.  1847,  c.  222,  §  10;  Id. 
1S74,  c.  4S3,  §  131. 


508  APPENDIX    OF   STATUTES.  [Md. ,  VIII.  a. 

§  120.  In  all  cases  where  any  estate,  real,  personal  or  mixed, 
shall  be  subject  to  the  collateral  inheritance  tax  imposed  by 
this  article,  and  no  administration  is  taken  out  on  the  estate 
of  the  person  who  died  seized  and  possessed  thereof,  within 
ninety  days  after  the  death  of  said  person,  the  orphans' 
court  of  the  county  in  which  such  administration  should  be 
granted,  shall  issue  a  summons  for  the  parties  entitled  to 
administration  to  show  cause  wherefore  they  do  not  admin- 
ister.20 

Provided  however  that  when  any  real  estate  shall  be  sub- 
ject to  said  tax,  and  no  administration  has  been  taken  on 
the  estate  of  the  person  who  died  seized  thereof;  the  or- 
phans' court  of  the  county  where  said  real  estate  shall  be 
situate,  may  on  the  application  of  any  one  interested  in  said 
real  estate  appoint  appraisers  to  value  the  same  as  pro- 
vided by  the  preceding  section  of  this  article,  and  the 
amount  of  said  tax  may  be  paid  to  the  register  of  wills  of 
the  county  when  the  said  application  shall  be  paid.  [Sec- 
tion 120  as  amended  by  Laws  1892,  c.  473.] 

§  121.  If  the  parties  entitled  by  law  to  administration 
do  not  administer  within  a  reasonable  time  to  be  fixed  by 
the  said  court,  or  if  they  be  incapable,  or  being  capable, 
they  decline  or  refuse  to  appear  on  proper  summons  or  no- 
tice, administration  shall  be  granted  to  such  person  as  the 
court  may  deem  proper.21 

§  122.  In  all  cases  where  application  is  made  to  the  or- 
phans' court  or  register  of  wills  of  any  county  or  the  city 
of  Baltimore,  for  letters  testamentary  or  of  administration, 
the  said  court  or  register  shall  inquire  of  the  person  mak- 
ing the  application  whether  he  knows  or  believes  that  there 
is  any  real  estate  of  the  decedent  liable  to  the  collateral 
inheritance  tax,  and  the  answer  of  such  applicant  shall  be 
given  on  oath  if  the  court  or  register  requires  it.22 

§  123.  The  register  of  wills  shall  give  to  the  person  pay- 
ing the  collateral  inheritance  tax  imposed  by  this  article, 
duplicate  receipts  for  said  tax,  one  of  which  shall  be  for- 
warded by  said  person  to  the  treasurer,  to  be  by  him  pre- 

20  Pub.  Gen.  Laws  1860,  art.  81,  §  143;  Id.  1847,  c.  222,  §  10;  Id. 
1874,  c.  483,  §  132. 

si  Pub.  Gen.  Laws  1860,  art.  81,  §  144;  Id.  1847,  c.  222,  §  10;  Id. 
1874,  c.  483,  §  133. 

22  Pub.  Gen.  Laws  1860,  art.  81,  §  145;  Id.  1844,  c.  184,  §  4;  Id. 
1874,  c.  483,  §  134. 


Md.,  VIII.  a.]  APPENDIX    OF    STATUTES.  509 

served,  and  copies  thereof  shall  be  evidence  in  suit  upon  the 
bond  of  said  register.28 

§  124.  It  shall  be  the  duty  of  the  several  clerks  and  the 
several  registers  of  wills  in  this  state  to  account  with  and 
pay  to  the  treasurer,  on  the  first  Monday  of  March,  June, 
September  and  December,  in  each  and  every  year,  all  sums 
of  money  received  by  them  respectively,  for  which  they 
shall  be  allowed  a  commission  of  five  per  centum  upon  the 
amount  so  paid  over.24 

§  125.  If  any  of  the  said  clerks  or  registers  shall  fail  to 
account  and  pay  over  as  required  in  the  preceding  section, 
the  comptroller  shall,  in  thirty  days  thereafter,  give  notice 
thereof  to  the  state  attorney  for  the  county  or  city  whose 
duty  it  shall  be  to  put  the  bond  of  such  clerk  or  register 
in  suit  for  the  use  of  the  state,  in  which  suit  a  recovery 
shall  be  had  for  the  amount  appearing  to  be  due,  with  in- 
terest at  the  rate  of  10  per  cent,  per  annum,  from  the  date 
or  dates  when  the  same  is  payable  as  aforesaid,  which  re- 
covery shall  be  evidence  of  misbehavior,  and  upon  convic- 
tion thereof  the  said  clerk  or  register  shall  be  removed  from 
office,  which  shall  thereupon  be  filled  as  prescribed  by  the 
constitution;  and  such  failure  on  the  part  of  any  clerk  or 
register  shall  amount  to  a  forfeiture  of  the  commission  to 
which  he  would  otherwise  be  entitled. 

23  Pub.  Gen.  Laws  1860,  art.  81,  §  146;  Id.  1845,  c.  71,  §  3;  Id. 
1847,  c.  222,  §  12;  Id.  1862,  c.  157;  Id.  1868,  c.  196;  Id.  1874,  c.  483, 
§  135. 

24  Banks  v.  State,  60  Md.  305;  Pub.  Gen.  Laws  1860,  art.  81,  § 
147;  Id.  1845,  c.  71,  §§  2,  3;  Id.  1847,  c.  222,  §  12;  Id.  1868,  c.  196; 
Id.  1874,  c.  483,  §  136. 


510  APPENDIX    OF   STATUTES.  [Cal. ,  IX.  a. 


IX.     CALIFORNIA. 

(a)  Laws  1893,  Ch.  CLXVIII,  with  Amendments  to  1895. 

An  act  to  establish  a  tax  on  collateral  inheritances,  be- 
quests, and  devises,  to  provide  for  its  collection,  and 
to  direct  the  disposition  of  the  proceeds. 

Approved  March  23,  1893,  and  amended  by  chapter  28, 
Laws  1895. 

The  people  of  the  state  of  California,  represented  in  sen- 
ate and  assembly,  do  enact  as  follows: 

§  1.  After  the  passage  of  this  act,  all  property  which  shall 
pass  by  will  or  by  the  intestate  laws  of  this  state,  from  any 
person  who  may  die  seized  or  possessed  of  the  same  while 
a  resident  of  this  state,  or  if  such  decedent  was  not  a  resi- 
dent of  this  state  at  the  time  of  death,  which  property,  or 
any  part  thereof,  shall  be  within  this  state,  or  any  interest 
therein,  or  income  therefrom,  which  shall  be  transferred  by 
deed,  grant,  sale,  or  gift,  made  in  contemplation  of  the  death 
of  the  grantor  or  bargainor,  or  intended  to  take  effect  in  pos- 
session or  enjoyment  after  such  death  to  any  person  or  per- 
sons, or  to  any  body  politic  or  corporate,  in  trust  or  other- 
wise, or  by  reason  whereof  any  person  or  body  politic  or  cor- 
porate shall  become  beneficially  entitled  in  possession  or  ex- 
pectancy, to  any  property  or  to  the  income  thereof,  other 
than  to  or  for  the  use  of  his  or  her  father,  mother,  husband, 
wife,  lawful  issue,  brother,  sister,  the  wife  or  widow  of  a 
son,  or  the  husband  of  a  daughter,  or  any  child  or  children 
adopted  as  such  in  conformity  with  the  laws  of  the  state  of 
California,  and  any  lineal  descendant  of  such  decedent  born 
in  lawful  wedlock,  or  the  societies,  corporations,  and  insti- 
tutions now  exempted  by  law  from  taxation,  by  reason 
whereof  any  such  person  or  corporation  shall  become  bene- 
ficially entitled,  in  possession  or  expectancy,  to  any  such 
property  or  to  the  income  thereof,  shall  be  and  is  subject  to 
a  tax  of  five  dollars  on  every  hundred  dollars  of  the  market 
value  of  such  property,  and  at  a  proportionate  rate  for  any 
less  amount,  to  be  paid  to  the  treasurer  of  the  proper  coun- 
ty, as  hereinafter  defined,  for  the  use  of  the  state;  and  all 
administrators,  executors,  and  trustees  shall  be  liable  for 
any  and  all  such  taxes  until  the  same  shall  have  been  paid, 
as  hereinafter  directed;  provided,  that  an  estate  which  may 


Cal.,  IX.  a.]  APPENDIX    OF    STATUTES.  511 

be  valued  at  a  less  sum  than  five  hundred  dollars  shall  not 
be  subject  to  such  duty  or  tax. 

§  2.  When  any  grant,  gift,  legacy,  or  succession  upon  which 
a  tax  is  imposed  by  section  one  of  this  act  shall  be  an  estate, 
income,  or  interest  for  a  term  of  years,  or  for  life,  or  deter- 
minable upon  any  future  or  contingent  event,  or  shall  be  a 
remainder,  reversion,  or  other  expectancy,  real  or  personal, 
the  entire  property  or  fund  by  which  such  estate,  income, 
or  interest  is  supported,  or  of  which  it  is  a  part,  shall  be 
appraised,  immediately  after  the  death  of  the  decedent  and 
the  market  value  thereof  determined,  in  the  manner  provid- 
ed in  section  eleven  of  this  act,  and  the  tax  prescribed  by 
this  act  shall  be  immediately  due  and  payable  to  the  treas- 
urer of  the  proper  county,  and,  together  with  the  interest 
thereon,  shall  be  and  remain  a  lien  on  said  property  until 
the  same  is  paid;  provided,  that  the  person  or  persons,  or 
body  politic  or  corporate,  beneficially  interested  in  the  prop- 
erty chargeable  with  said  tax,  may  elect  not  to  pay  the  same 
until  they  shall  come  into  the  actual  possession  or  enjoy- 
ment of  such  property,  and  in  that  case  such  person  or  per- 
sons, or  body  politic  or  corporate,  shall  execute  a  bond  to 
the  people  of  the  state  of  California,  in  a  penalty  of  twice 
the  amount  of  the  tax  arising  upon  personal  estate,  with 
such  sureties  as  the  said  superior  court  may  approve,  con- 
ditioned for  the  payment  of  said  tax,  and  interest  thereon, 
at  such  time  or  period  as  they  or  their  representatives  may 
come  into  the  actual  possession  or  enjoyment  of  such  prop- 
erty, which  bond  shall  be  filed  in  the  office  of  the  county 
clerk  of  the  proper  county ;  provided  further,  that  such  per- 
son shall  make  a  full  and  verified  return  of  such  property 
to  said  court,  and  file  the  same  in  the  office  of  the  county 
clerk  within  one  year  from  the  death  of  the  decedent,  and 
within  that  period  enter  into  such  security,  and  renew  the 
same  every  five  years.  [Chapter  28,  Laws  1895,  amending 
section  2.] 

§  3.  Whenever  a  decedent  appoints  or  names  one  or  more 
executors  or  trustees,  and  makes  a  bequest  or  devise  of  prop- 
erty to  them  in  lieu  of  commissions  or  allowances,  which 
otherwise  would  be  liable  to  said  tax,  or  appoints  them  his 
residuary  legatees,  and  said  bequest,  devises,  or  residuary 
legacies  exceed  what  would  be  a  reasonable  compensation 
for  their  services,  such  excess  shall  be  liable  to  said  tax; 
and  the  superior  court  in  which  the  probate  proceedings  are 
pending  shall  fix  the  compensation. 

§  4.  All  taxes  imposed  by  this  act,  unless  otherwise  herein 


512  APPENDIX  OF  statutes.  [Cal. ,  IX.  a. 

provided  for,  shall  be  due  and  payable  at  the  death  of  the 
decedent,  and  if  the  same  are  paid  within  eighteen  months, 
no  interest  shall  be  charged  and  collected  thereon,  but  if  not 
so  paid,  interest  at  the  rate  of  ten  per  centum  per  annum 
shall  be  charged  and  collected  from  the  time  said  tax  ac- 
crued; provided,  that  if  said  tax  is  paid  within  six  months 
from  the  accruing  thereof  a  discount  of  five  per  centum  shall 
be  allowed  and  deducted  from  said  tax.  And  in  all  cases  where 
the  executors,  administrators,  or  trustees  do  not  pay  such 
tax  within  eighteen  months  from  the  death  of  the  decedent, 
they  shall  be  required  to  give  a  bond  in  the  form  and  to  the 
effect  prescribed  in  section  two  of  this  act  for  the  payment 
of  said  tax,  together  with  interest. 

§  5.  The  penalty  of  ten  per  centum  per  annum  imposed  by 
section  four  hereof,  for  the  non-payment  of  said  tax,  shall 
not  be  charged  in  case  where,  by  reason  of  claims  made  upon 
the  estate,  necessary  litigation,  or  other  unavoidable  cause 
of  delay,  the  estate  of  any  decedent,  or  a  part  thereof,  cannot 
be  settled  at  the  end  of  eighteen  months  from  the  death  of 
the  decedent;  and  in  such  cases  only  seven  per  centum  per 
annum  shall  be  charged  upon  the  said  tax  from  the  expira- 
tion of  said  eighteen  months  until  the  cause  of  such  delay 
is  removed. 

§  6.  Any  administrator,  executor,  or  trustee  having  in 
charge  or  trust  any  legacy  or  property  for  distribution,  sub- 
ject to  the  said  tax,  shall  deduct  the  tax  therefrom,  or  if  the 
legacy  or  property  be  not  money  he  shall  collect  the  tax 
thereon  upon  the  market  value  thereof  from  the  legatee  or 
person  entitled  to  such  property,  and  he  shall  not  deliver, 
or  be  compelled  to  deliver,  any  specific  legacy  or  property 
subject  to  tax  to  any  person  until  he  shall  have  collected  the 
tax  thereon;  and  whenever  any  such  legacy  shall  be  charged 
upon  or  payable  out  of  real  estate,  the  executor,  adminis- 
trator, or  trustee  shall  collect  said  tax  therefrom,  and  the 
same  shall  remain  a  charge  on  such  real  estate  until  paid; 
if,  however,  such  legacy  be  given  in  money  to  any  person 
for  a  limited  period,  the  executor,  administrator,  or  trustee 
shall  retain  the  tax  upon  the  whole  amount;  but  if  it  be 
not  in  money  he  shall  make  application  to  the  superior  court 
to  make  an  apportionment,  if  the  case  require  it,  of  the  sum 
to  be  paid  into  his  hands  by  such  legatees,  and  for  such  fur- 
ther order  relative  thereto  as  the  case  mav  require.  [Laws 
1895,  c.  28,  §  6.] 

§  7.  All  executors,  administrators,  and  trustees  shall  have 
full  power  to  sell  so  much  of  the  property  of  the  decedent 


Cal.,IX.  a.]  appendix  of  statutes.  513 

as  will  enable  them  to  pay  said  tax,  in  the  same  manner  as 
they  may  be  enabled  by  law  to  do  for  the  payment  of  debts 
of  the  estate,  and  the  amount  of  said  tax  shall  be  paid  as 
hereinafter  directed. 

§  8.  Every  sum  of  money  retained  by  an  executor,  admin- 
istrator, or  trustee,  or  paid  into  his  hands,  for  any  tax  on 
property,  shall  be  paid  by  him  within  thirty  days  thereafter, 
to  the  treasurer  of  the  county  in  which  the  probate  proceed- 
ings are  pending,  and  the  said  treasurer  shall  give,  and 
every  executor,  administrator,  or  trustee  shall  take  duplicate 
receipts  for  stub  payment,  one  of  which  receipts  said  ex- 
ecutor, administrator,  or  trustee  shall  immediately  send  to 
the  controller  of  the  state,  whose  duty  it  shall  be  to  charge 
the  treasurer  so  receiving  the  tax  with  the  amount  thereof, 
and  said  controller  shall  seal  said  receipt  with  the  seal  of 
his  office,  and  countersign  the  same,  and  return  it  to  the  ex- 
ecutor, administrator,  or  trustee,  whereupon  it  shall  be  a 
proper  voucher  in  the  settlement  of  his  accounts;  and  an 
executor,  administrator,  or  trustee  shall  not  be  entitled  to 
credits  in  his  accounts,  nor  be  discharged  from  liability  for 
such  tax,  nor  shall  said  estate  be  distributed  unless  he  shall 
produce  a  receipt  so  sealed  and  countersigned  by  the  con- 
troller, or  a  copy  thereof,  certified  by  him. 

§  9.  Whenever  any  debts  shall  be  proven  against  the  es- 
tate of  a  decedent  after  the  payment  of  legacies  or  distribu- 
tion of  property  from  which  the  said  tax  has  been  deducted 
or  upon  which  it  has  been  paid,  and  a  refund  is  made  by 
the  legatee,  devisee,  heir,  or  next  of  kin,  a  proportion  of  the 
tax  so  deducted  or  paid  shall  be  repaid  to  him  by  the  ex- 
ecutor, administrator,  or  trustee,  if  the  said  tax  has  not  been 
paid  to  the  county  treasurer  or  to  the  state  controller,  or  by 
them,  if  it  has  been  so  paid. 

§  10.  Whenever  any  foreign  executor  or  administrator 
shall  assign  or  transfer  any  stocks  or  loans  in  this  state 
standing  in  the  name  of  a  decedent,  or  held  in  trust  for  a 
decedent,  which  shall  be  liable  to  the  said  tax,  such  tax 
shall  be  paid  to  the  treasurer  of  the  proper  county,  on  the 
transfer  thereof;  otherwise  the  corporation  permitting  such 
transfer  shall  become  liable  to  pay  such  tax;  provided,  that 
such  corporation  had  knowledge  before  such  transfer  that 
said  stocks  or  loans  are  liable  to  said  tax. 

§  11.  When  the  value  of  any  inheritance,  devise,  bequest, 
or  other  interest  subject  to  the  payment  of  said  tax  is  un- 
certain, the  superior  court  in  which  the  probate  proceedings 
law  inher. — 33 


514  APPENDIX  OF  statutes.  [Cal.,IX.  a. 

are  pending,  on  the  application  of  any  interested  party,  or 
upon  his  own  motion,  shall  appoint  some  competent  person 
as  appraiser,  as  often  as  and  whenever  occasion  may  require, 
whose  duty  it  shall  be  forthwith  to  give  such  notice,  by  mail, 
to  all  persons  known  to  have  or  claim  an  interest  in  such 
property,  and  to  such  persons  as  the  court  may  by  order  di- 
rect, of  the  time  and  place  at  which  he  will  appraise  such 
property,  and  at  such  time  and  place  to  appraise  the  same, 
and  make  a  report  thereof,  in  writing,  to  said  court,  to- 
gether with  such  other  facts  in  relation  thereto  as  said  court 
may  by  order  require,  to  be  filed  with  the  clerk  of  such  court; 
and  from  this  report  the  said  court  shall,  by  order,  forth- 
with assess  and  fix  the  market  value  of  all  inheritances,  de- 
vises, bequests,  or  other  interests,  and  the  tax  to  which  the 
same  is  liable,  and  shall  immediately  cause  notice  thereof 
to  be  given,  by  mail,  to  all  parties  known  to  be  interested 
therein;  and  the  value  of  every  future,  or  contingent,  or 
limited  estate,  income,  or  interest  shall,  for  the  purposes  of 
this  act,  be  determined  by  the  rule,  method,  and  standards 
of  mortality  and  of  value  that  are  set  forth  in  the  actuaries' 
combined  experience  tables  of  mortality  for  ascertaining  the 
value  of  policies  of  life  insurance  and  annuities  and  for  the 
determination  of  the  liabilities  of  life  insurance  companies, 
save  that  the  rate  of  interest  to  be  assessed  in  computing  the 
present  value  of  all  future  interests  and  contingencies  shall 
be  five  per  centum  per  annum;  and  the  insurance  commis- 
sioner shall,  on  the  application  of  said  court,  determine  the 
value  of  such  future,  or  contingent,  or  limited  estate,  income, 
or  interest,  upon  the  facts  contained  in  such  report,  and 
certify  the  same  to  the  court,  and  his  certificate  shall  be  con- 
clusive evidence  that  the  method  of  computations  adopted 
therein  is  correct.  The  said  appraiser  shall  be  paid  by  the 
county  treasurer  out  of  any  funds  that  he  may  have  in  his 
hands  on  account  of  said  tax,  on  the  certificate  of  the  court, 
at  the  rate  of  five  dollars  per  day  for  every  day  actually  and 
necessarily  employed  in  said  appraisement,  together  with 
his  actual  and  necessary  traveling  expenses.  [As  amended 
by  chapter  28,  Laws  1895,  §  11.] 

§  12.  Any  appraiser  appointed  by  virtue  of  this  act  who 
shall  take  any  fee  or  reward  from  any  executor,  adminis- 
trator, trustee,  legatee,  next  of  kin,  or  heir  of  any  decedent, 
or  from  any  other  person  liable  to  pay  said  tax,  or  any  por- 
tion thereof,  shall  be  guilty  of  a  misdemeanor,  and  upon  con- 
viction thereof  shall  be  fined  not  less  than  two  bundled  and 


Cal.,  IX.  a.]  APPENDIX   OF   STATUTES.  515 

fifty  dollars  nor  more  than  five  hundred  dollars,  or  impris- 
oned in  the  county  jail  ninety  days,  or  both,  and  in  addition 
thereto  the  court  shall  dismiss  him  from  such  service. 

§  13.  The  superior  court  in  the  county  in  which  is  situate 
the  real  property  of  a  decedent  who  was  not  a  resident  of 
the  state,  or  in  the  county  of  which  the  decedent  was  a  resi- 
dent at  the  time  of  his  death,  shall  have  jurisdiction  to  hear 
and  determine  all  questions  in  relation  to  the  tax  arising 
under  the  provisions  of  this  act,  and  the  court  first  acquiring 
jurisdiction  hereunder  shall  retain  the  same,  to  the  exclusion 
of  every  other. 

§  14.  If  it  shall  appear  to  the  superior  court,  or  judge 
thereof,  that  any  tax  accruing  under  this  act  has  not  been 
paid  according  to  law,  it  shall  issue  a  citation,  citing  the 
persons  known  to  own  any  interest  in  or  part  of  the  prop- 
erty liable  to  the  tax  to  appear  before  the  court  on  a  day 
certain,  not  more  than  ten  weeks  after  the  date  of  such 
citation,  and  show  cause  why  said  tax  should  not  be  paid. 
The  service  of  such  citation,  and  the  time,  manner,  and 
proof  thereof,  and  the  hearing  and  determination  thereon, 
and  the  enforcement  of  the  determination  or  decree,  shall 
conform  to  the  provisions  of  chapter  twelve,  of  title  eleven, 
of  part  three  of  the  Code  of  Civil  Procedure;  and  the 
clerk  of  the  court  shall,  upon  the  request  of  the  district 
attorney  or  treasurer  of  the  county,  furnish  without  fee, 
one  or  more  transcripts  of  such  decree,  and  the  same  shall 
be  docketed  and  filed  by  the  county  clerk  of  any  county  in 
the  state,  without  fee,  in  the  same  manner  and  with  the 
same  effect  as  provided  by  section  six  hundred  and  seventy- 
four  of  said  Code  of  Civil  1'rocedure  for  filing  a  transcript 
of  an  original  docket. 

§  15.  Whenever  the  treasurer  of  any  county  shall  have 
reason  to  believe  that  any  tax  is  due  and  unpaid  under  this 
act,  after  the  refusal  or  neglect  of  the  persons  interested 
in  the  property  liable  to  said  tax  to  pay  the  same,  he  shall 
notify  the  district  attorney  of  the  proper  county,  in  writing, 
of  such  failure  to  pay  such  tax,  and  the  district  attorney  so 
notified,  if  he  have  probable  cause  to  believe  a  tax  is  due 
and  unpaid,  shall  prosecute  the  proceeding  in  the  superior 
court  in  the  proper  county,  as  provided  in  section  fourteen 
of  this  act,  for  the  enforcement  and  collection  of  such  tax. 
[As  amended  by  chapter  28,  Laws  1895,  §  15.] 

§  16.  The  county  clerk  of  each  county  shall,  every  three 
months,  make  a  statement,  in  writing,  to  the  county  treas- 


516  APPENDIX   OF  statutes.  [Cal.,IX.  a. 

urer,  of  the  property  from  which,  or  the  party  from  which, 
he  has  reason  to  believe  a  tax,  under  this  act,  is  due  and 
unpaid. 

§  17.  Whenever  the  superior  court  of  any  county  shall 
certify  that  there  was  probable  cause  for  issuing  a  citation, 
and  taking  the  proceedings  specified  in  section  fifteen  of 
this  act,  the  state  treasurer,  shall  pay,  or  allow  to  the  treas- 
urer of  any  county,  all  expenses  incurred  for  services  of 
citation,  and  his  other  lawful  disbursements  that  have  not 
otherwise  been  paid.  [As  amended  by  chapter  28,  Laws 
1895,  §  15.] 

§  18.  The  county  clerk  of  each  county  shall  keep  a  book 
in  which  he  shall  enter  the  value  of  inheritances,  devises, 
bequests  and  other  interests  subject  to  the  payment  of  said 
tax,  and  the  tax  assessed  thereon,  and  the  amounts  of  any 
receipts  for  payments  thereon  filed  with  him,  which  books 
shall  be  kept  by  him  as  public  records. 

§  19.  The  treasurer  of  each  county  shall  collect  and  pay 
the  state  treasurer  all  taxes  that  may  be  due  and  payable 
under  this  act,  who  shall  give  him  a  receipt  therefor,  of 
which  collection  and  payment  he  shall  make  a  report,  un- 
der oath,  to  the  controller,'  between  the  first  and  fifteenth 
days  of  May  and  December  of  each  year,  stating  for  what 
estate  paid,  and  in  such  form  and  containing  such  partic- 
ulars as  the  controller  may  prescribe;  and  for  all  such  taxes 
collected  by  him  and  not  paid  to  the  state  treasurer  by  the 
first  day  of  June  and  January  of  each  year  he  shall  pay  in- 
terest at  the  rate  of  ten  per  centum  per  annum. 

§  20.  The  treasurer  of  each  county  shall  be  allowed  to 
retain,  on  all  taxes  paid  and  accounted  for  by  him  each 
year,  under  this  act,  in  addition  to  his  salary  or  fees  now 
allowed  by  law,  five  per  centum  on  the  first  fifty  thousand 
dollars  so  paid  and  accounted  for  by  him,  three  per  centum 
on  the  next  fifty  thousand  dollars  so  paid  and  accounted 
for  by  him,  and  one  per  centum  on  all  additional  sums  so 
paid  and  accounted  for  by  him. 

§  21.  Any  person,  or  body  politic  or  corporate,  shall,  upon 
payment  of  the  sum  of  fifty  cents,  be  entitled  to  a  receipt 
from  the  county  treasurer  of  any  county,  or  a  copy  of  the 
receipt,  at  his  option,  that  may  have  been  given  by  said 
treasurer  for  the  payment  of  any  tax  under  this  act,  to  be 
sealed  with  the  seal  of  his  office,  which  receipt  shall  desig- 
nate on  what  real  property,  if  any,  of  which  any  decedent 
may  have  died  seized,  said  tax  has  been  paid,  and  by  whom 


Cal.,  IX.  a.]  APPENDIX   OF  STATUTES.  517 

paid,  and  whether  or  not  it  is  in  full  of  said  tax;  and  said 
receipt  may  be  recorded  in  the  clerk's  office  in  the  county 
in  which  said  property  is  situate,  in  a  book  to  be  kept  by 
said  clerk  for  such  purpose,  which  shall  be  labeled  "Collat- 
eral Tax." 

§  22.  All  taxes  levied  and  collected  under  this  act  shall 
be  paid  into  the  treasury  of  the  state,  for  the  uses  of  the 
state  school  fund. 

§  23.  All  acts  or  parts  of  acts  inconsistent  with  the  pro- 
visions of  this  act  are  hereby  repealed. 


518  APPENDIX    OF    STATUTES.  [lll.,X. 


X.     ILLINOIS. 

[Taken  from  Laws  of  Illinois,  by  James  B.  Bradwell,  Chicago  Le- 
gal News  Co.,  Chicago,  1S95,  p.  213;  compared  with  Laws  111.  1895, 
Reg.  &  Ex.  Sess.  p.  301.] 

An  act  to  tax  gifts,  legacies  and  inheritances  in  certain 
cases  and  to  provide  for  the  collection  of  the  same.  Ap- 
proved June  15,  1895.      In  force  July  1,  18D5. 

307.     Rate  of  tax. 

§  1.  Be  it  enacted  by  the  people  of  the  state  of  Illinois, 
represented  in  the  general  assembly,  all  property,  real,  per- 
sonal and  mixed,  which  shall  pass  by  will  or  by  the  intestate 
laws  of  this  state  from  any  person  who  may  die  seized  or 
possessed  of  the  same  while  a  resident  of  this  state,  or,  if 
decedent  was  not  a  resident  of  this  state  at  the  time  of  his 
death,  which  property  or  any  part  thereof  shall  be  within 
this  state  or  any  interest  therein  or  income  therefrom,  which 
shall  be  transferred  by  deed,  grant,  sale  or  gift  made  in  con- 
templation of  the  death  of  the  grantor  or  bargainor  or  in- 
tended to  take  effect,  in  possession  or  enjoyment  after  such 
death,  to  any  person  or  persons  or  to  any  body  politic  Or 
corporate  in  trust  or  otherwise,  or  by  reason  whereof  any 
person  or  body  politic  or  corporate  shall  become  beneficially 
entitled  in  possession  or  expectation  to  any  property  or  in- 
come thereof,  shall  be  and  is  subject  to  a  tax  at  the  rate 
hereinafter  specified  to  be  paid  to  the  treasurer  of  the  proper 
county,  for  the  use  of  the  state;  and  all  heirs,  legatees  and 
devisees,  administrators,  executors  and  trustees  shall  be  lia- 
ble for  any  and  all  such  taxes  until  the  same  shall  have  been 
paid  as  hereinafter  directed.  When  the  beneficial  interests 
to  any  property  or  income  therefrom  shall  pass  to  or  for  the 
use  of  any  father,  mother,  husband,  wife,  child,  brother,  sis- 
ter, wife  or  widow  of  the  son  or  the  husband  of  the  daughter 
or  any  child  or  children  adopted  as  such  in  conformity  with 
the  laws  of  the  state  of  Illinois  or  to  any  person  to  whom 
the  deceased,  for  not  less  than  ten  years  prior  to  death  stood 
in  the  acknowledged  relation  of  a  parent,  or  to  any  lineal 
descendant  born  in  lawful  wedlock;  in  every  such  case  the 
rate  of  tax  shall  be  one  dollar  on  every  hundred  dollars  of 
the  clear  market  value  of  such  property  received  by  each 
person  and  at  and  after  the  same  rate  for  every  less  amount, 


111.,  X.]  APPENDIX  OF  STATUTES.  519 

provided  that  any  estate  which  may  be  valued  at  a  less  sura 
than  twenty  thousand  dollars  shall  not  be  subject  to  any 
such  duty  or  taxes;  and  the  tax  is  to  be  levied  in  above 
cases  only  upon  the  excess  of  twenty  thousand  dollars  re- 
ceived by  each  person.  When  the  beneficial  interests  to 
any  property  or  income  therefrom  shall  pass  to  or  for  the 
use  of  any  uncle,  aunt,  niece,  nephew  or  any  lineal  descend- 
ant of  the  same,  in  every  such  case  the  rate  of  such  tax  shall 
be  two  dollars  on  every  one  hundred  dollars  of  the  clear 
market  value  of  such  property  received  by  each  person  on 
the  excess  of  two  thousand  dollars  so  received  by  each  per- 
son. In  all  other  cases  the  rate  shall  be  as  follows:  On 
each  and  every  hundred  dollars  of  the  clear  market  value 
of  all  property  and  at  the  same  rate  for  any  less  amount;  on 
all  estates  of  ten  thousand  dollars  and  less,  three  dollars; 
on  all  estates  of  over  ten  thousand  dollars  and  not  exceed- 
ing twenty  thousand  dollars,  four  dollars,  on  all  estates  over 
twenty  thousand,  and  not  exceeding  lift}'  thousand,  five 
dollars;  and  on  all  estates  over  fifty  thousand  dollars,  six 
dollars:  provided  that  an  estate  in  the  above  case  which 
may  be  valued  at  a  less  sum  than  five  hundred  dollars  shall 
not  be  subject  to  any  duty  or  tax. 

308.     Lineal  descendant — Life  estate  or  for  term  of 
years — Rule  as  to  taxation — Bond. 

§  2.  When  any  person  shall  bequeath  or  devise  any  prop- 
erty or  interest  therein  or  income  therefrom  to  mother,  fa- 
ther, husband,  wife,  brother  and  sister,  the  widow  of  the  son 
or  a  lineal  descendant  during  the  life  or  for  a  term  of  years 
or  remainder  to  the  collateral  heir  of  the  decedent,  or  to  the 
stranger  in  blood  or  to  the  body  politic  or  corporate  at  their 
decease,  or  on  the  expiration  of  such  term,  the  said  life  es- 
tate or  estates  for  a  term  of  years  shall  not  be  subject  to 
any  tax  and  the  prooerty  so  passing  shall  be  a] (praised  im- 
mediately after  the  death  at  what  was  the  fair  market  value 
thereof  at  the  time  of  the  death  of  the  decedent  in  the  man- 
ner hereinafter  provided,  and  after  deducting  therefrom  the 
value  of  said  life  estate,  or  term  of  years,  the  tax  transcribed 
by  this  act  on  the  remainder  shall  be  immediately  due  and 
payable  to  the  treasurer  of  the  proper  county,  and,  together 
with  the  interests  thereon,  shall  be  and  remain  a  lien  on  said 
property  until  the  same  is  paid:  provided,  that  the  person 
or  persons  or  body  politic  or  corporate  beneficially  interested 
in  the  property  chargeable  with  said  tax  elect  not  to  pay 
the  same  until  they  shall  come  in  the  actual  possession  or 


520  APPENDIX   OF    STATUTES.  [111. ,  X. 

enjoyment  of  such  property,  or,  in  that  case  said  person  or 
persons  or  body  politic  or  corporate  shall  give  a  bond  to  the 
people  of  the  state  of  Illinois  in  the  penalty  of  three  times 
the  amount  of  the  tax  arising  upon  such  estate  with  such 
sureties  as  the  county  judge  may  approve,  conditioned  for 
the  payment  of  the  said  tax  and  interest  thereon  at  such 
time  or  period  as  they  or  their  representatives  may  come 
into  the  actual  possession  or  enjoyment  of  said  property; 
which  bond  shall  be  filed  in  the  office  of  the  county  clerk  of 
the  proper  county:  provided  further,  that  such  person  shall 
make  a  full,  verified  return  of  said  property  to  said  county 
judge,  and  file  the  same  in  his  office  within  one  year  from 
the  death  of  the  decedent,  and  within  that  period  enter  into 
such  securities  and  renew  the  same  for  five  years. 

309.  Taxes — When  payable — Penalty. 

§  3.  All  taxes  imposed  by  this  act,  unless  otherwise  herein 
provided  for,  shall  be  due  and  payable  at  the  death  of  the 
decedent  and  interest  at  the  rate  of  six  per  cent  per  annum 
shall  be  charged  and  collected  thereon  for  such  time  as  said 
taxes  is  not  paid:  provided,  that  if  said  tax  is  paid  within 
six  months  from  the  accruing  thereof,  interest  shall  not  be 
charged  or  collected  thereon,  but  a  discount  of  five  per  cent 
shall  be  allowed  and  deducted  from  said  tax,  and  in  all  cases 
where  the  executors,  administrators  or  trustees  do  not  pay 
such  tax  within  one  year  from  the  death  of  the  decedent, 
they  shall  be  required  to  give  a  bond  in  the  form  and  to  the 
effect  prescribed  in  section  2  of  this  act  for  the  payment  of 
said  tax,  together  with  interest. 

310.  Inheritance  tax — When,  how  and    by  whom 

paid. 

§  4.  Any  administrator,  executor  or  trustee  having  any 
charge  or  trust  in  legacies  or  property  for  distribution  sub- 
ject to  the  said  tax  shall  deduct  the  tax  therefrom,  or  if  the 
legacy  or  property  be  not  money  he  shall  collect  a  tax  there- 
on upon  the  appraised  value  thereof  from  the  legatee  or  per- 
son entitled  to  such  property,  and  he  shall  not  deliver  or  be 
compelled  to  deliver  any  specific  legacy  or  property  subject 
to  tax  to  any  person  until  he  shall  have  collected  the  tax 
thereon;  and  whenever  any  such  legacy  shall  be  charged 
upon  or  payable  out  of  real  estate  the  heir  or  devisee  before 
paying  the  same  shall  deduct  said  tax  therefrom,  and  pay 
the  same  to  the  executor,  administrator  or  trustee,  and  the 


111.,  X.]  APPENDIX  OF  STATUTES.  521 

same  shall  remain  a  charge  on  such  real  estate  until  paid, 
and  the  payment  thereof  shall  be  enforced  by  the  executor, 
administrator  or  trustee  in  the  same  manner  that  the  said 
payment  of  said  legacies  might  be  enforced,  if,  however, 
such  legacy  be  given  in  money  to  any  person  for  a  limited 
period,  he  shall  retain  the  tax  upon  the  whole  amount,  but 
if  it  be  not  in  money  he  shall  make  application  to  the  court 
having  jurisdiction  of  his  accounts,  to  make  an  apportion- 
ment if  the  case  requires  it  of  the  sum  to  be  paid  into  his 
hands  by  such  legatees,  and  for  such  further  order  relative 
thereof  as  the  case  may  require. 

311.  Powers  of  executors  and  administrators. 

§  5.  All  executors,  administrators  and  trustees  shall  have 
full  power  to  sell  so  much  of  the  property  of  the  decedent  as 
will  enable  them  to  pay  said  tax,  in  the  same  manner  as  they 
may  be  enabled  to  do  by  law  for  the  payment  of  duties  of 
their  testators  and  intestates,  and  the  amount  of  said  tax 
shall  be  paid  as  hereinafter  directed. 

312.  Tax  to  be  paid  to  treasurer — Sealed  receipt. 

§  6.  Every  sum  of  money  retained  by  any  executor,  ad- 
ministrator or  trustee,  or  paid  into  his  hands  for  any  tax  on 
any  property,  shall  be  paid  by  him  within  thirty  days  there- 
after to  the  treasurer  of  the  proper  county,  and  the  said 
treasurer  or  treasurers  shall  give,  and  every  executor,  ad- 
ministrator or  trustee  shall  take,  duplicate  receipts  from 
him  of  said  payments,  one  of  which  receipts  he  shall  imme- 
diately send  to  the  state  treasurer,  whose  duty  it  shall  be  to 
charge  the  treasurer  so  receiving  the  tax  with  the  amount 
thereof,  and  shall  seal  said  receipt  with  the  seal  of  his  office 
and  countersign  the  same  and  return  it  to  the  executor,  ad- 
ministrator or  trustee,  whereupon  it  shall  be  a  proper  vouch- 
er in  the  settlements  of  his  accounts ;  but  the  executor,  ad- 
ministrator or  trustee  shall  not  be  entitled  to  credit  in  his 
accounts  or  be  discharged  from  liability  for  such  tax  unless 
he  shall  purchase  a  receipt  so  sealed  and  countersigned  by 
the  treasurer  and  a  copy  thereof  certified  by  him. 

313.  When  real  estate  liable  to   tax  —  Duty  of  ex- 

ecutor —  Information    in    -writing    to    the 
treasurer. 

§  7.  Whenever  any  of  the  real  estate  of  which  any  dece- 
dent may  die  seized  shall  pass  to  any  body  politic  or  corpo- 


522  APPENDIX    OF   STATUTES.  [I11.,X. 

rate,  or  to  any  person  or  persons,  or  in  trust  for  them,  or 
some  of  them,  it  shall  be  the  duty  of  the  executor,  adminis- 
trator or  trustee  of  such  decedent  to  give  information  there- 
of in  writing  to  the  treasurer  of  the  county  where  said  real 
estate  is  situated,  within  six  months  after  they  undertake 
the  execution  of  their  expected  duties,  or  if  the  fact  be  not 
known  to  them  within  that  period,  then  within  one  month 
after  the  same  shall  have  come  to  their  knowledge. 

314.  When  portion  of  tax  repaid  to  legatee — "Who 

has  to  refund  a  portion  of  the  legacy. 

§  8.  Whenever  debts  shall  be  proved  against  the  estate 
of  the  decedent  after  distribution  of  legacies  from  which  the 
inheritant  [inheritance]  tax  has  been  deducted  in  compliance 
with  this  act,  and  the  legatee  is  required  to  refund  any  por- 
tion of  the  legacy,  a  proportion  of  the  said  tax  shall  be  re- 
paid to  him  by  the  executor  or  administrator  if  the  said  tax 
has  not  been  paid  into  the  state  or  county  treasury,  or  by  the 
county  treasurer  if  it  has  been  so  Daid. 

315.  Foreign  executor  or  administrator — Property 

in  this  state. 

§  9.  Whenever  any  foreign  executor  or  administrator  shall 
assign  or  transfer  any  stocks  or  loans  in  this  state  standing 
in  the  name  of  decedent,  or  in  trust  for  a  decedent,  which 
shall  be  liable  to  the  said  tax,  such  tax  shall  be  paid  to  the 
treasury  or  treasurer  of  the  proper  county  on  the  transfer 
thereof,  otherwise  the  corporation  forming  such  transfer 
shall  become  liable  to  pay  such  taxes,  provided  that  such 
corporation  has  knowledge  before  such  transfer  that  said 
stocks  or  loans  are  liable  to  such  taxes. 

316.  When  tax  paid  erroneously. 

§  10.  When  any  amount  of  said  tax  shall  have  been  paid 
erroneously  to  the  state  treasury,  it  shall  be  lawful  for  him 
on  satisfactory  proof  rendered  to  him  by  said  county  treas- 
urer of  said  erroneous  payments  to  refund  and  pay  to  the 
executor,  administrator  or  trustee,  person  or  persons  who 
have  paid  any  such  tax  in  error  the  amount  of  such  tax  so 
paid,  provided  that  all  applications  for  the  repayment  of  said 
tax  shall  be  made  within  two  years  from  the  date  of  said 
payment. 


I11.,X.]  APPENDIX  OF  STATUTES.  523 

317.  How  value  of  property  fixed. 

§  11.  In  order  to  fix  the  value  of  property  of  persons  whose 
estate  shall  be  subject  to  the  payment  of  said  tax,  the  county 
judge,  on  the  application  of  any  interested  party  or  upon  his 
own  motion,  shall  appoint  some  competent  person  as  ap- 
praiser as  often  as  or  whenever  occasion  may  require,  whose 
duty  it  shall  be  forthwith  to  give  such  notice  by  mail  to 
all  persons  known  to  have  or  claim  an  interest  in  such 
property  and  to  such  persons  as  the  county  judge  may 
by  order  direct  of  the  time  and  place  he  will  appraise 
such  property,  and  at  such  time  and  place  to  appraise 
the  same  at  a  fair  market  value;  and  for  that  purpose  the  ap- 
praiser is  authorized  by  leave  of  the  county  judge  to  use  sub- 
poenas for  and  to  compel  the  attendance  of  witnesses  before 
him  and  to  take  the  evidence  of  such  witnesses  under  oath 
concerning  such  property  and  the  value  thereof,  and  he  shall 
make  a  report  thereof  and  of  such  value,  in  writing,  to  said 
county  judge,  with  the  depositions  of  the  witnesses  examined, 
and  such  other  facts  in  relation  thereto  and  to  said  matter  as 
said  count}'  judge  may  by  order  require  to  be  filed  in  the 
office  of  the  clerk  of  said  county  court;  and  from  this  report 
the  said  county  judge  shall  forthwith  use  and  fix  the  then 
cash  value  of  all  estates,  annuities,  and  life  estates  or  terms 
of  years  growing  out  of  said  estate,  and  the  tax  to  which  the 
same  is  liable,  and  shall  immediately  give  notice  by  mail  to 
all  parties  known  to  be  interested  therein.  Any  person  or 
persons  dissatisfied  with  the  appraisement  or  assessment 
may  appeal  therefrom  to  the  county  court  of  the  proper 
county  within  sixty  days  after  the  making  and  filing  of  such 
appraisement  or  assessment  on  paying  the  given  security 
proof  to  the  county  judge  to  pav  all  costs,  together  with 
whatever  taxes  that  shall  be  fixed  by  said  court.  The  said 
appraiser  shall  be  paid  by  the  county  treasurer  out  of  any 
funds  he  may  have  in  his  hands  on  account  of  said  tax,  on 
the  certificate  of  the  county  judge,  at  the  rate  of  three  dol- 
lars per  day  for  every  day  actually  and  necessarily  employed 
in  said  appraisement,  together  with  his  actual  and  necessary 
traveling  expenses. 

318.  Appraisers  taking  fee  or  reward — Penalty. 

§  12.  Any  appraiser  appointed  by  this  act  who  shall  take 
any  fee  or  reward  from  any  executor,  administrator,  trustee, 
legatee,  next  of  kin  or  heir  of  any  decedent,  or  from  any 


524  APPENDIX    OF   STATUTES.  [111.,  X. 

other  person  liable  to  pay  said  tax  or  any  portion  thereof, 
shall  be  guilty  of  a  misdemeanor,  and  upon  conviction  in 
any  court  having  jurisdiction  of  misdemeanors  he  shall  be 
fined  not  less  than  two  hundred  and  fifty  dollars  nor  more 
than  five  hundred  dollars  and  imprisoned  not  exceeding 
ninety  days;  and  in  addition  thereto  the  county  judge  shall 
dismiss  him  from  such  service. 

319.  Jurisdiction  of  county  court. 

§  13.  The  county  court  in  the  county  in  which  the  real 
property  is  situated  of  the  decedent  who  was  not  a  resident 
of  the  state  or  in  the  county  of  which  the  deceased  was  a 
resident  at  the  time  of  his  death,  shall  have  jurisdiction  to 
hear  and  determine  all  questions  in  relation  to  the  tax 
arising  under  the  provisions  of  this  act,  and  the  county  court 
first  acquiring  jurisdiction  hereunder  shall  retain  the  same 
to  the  exclusion  of  every  other. 

320.  Proceedings  when  tax  has  not  been  paid. 

§  14.  If  it  shall  appear  to  the  county  court  that  any  tax 
accruing  under  this  act  has  not  been  paid  according  to  law, 
it  shall  issue  a  summons  summoning  the  persons  interested 
in  the  property  liable  to  the  tax  to  appear  before  the  court 
on  a  day  certain  not  more  than  three  months  after  the  date 
of  such  summons,  to  show  cause  why  said  tax  should  not  be 
paid.  The  process,  practice  and  pleadings,  and  the  hearing 
and  determination  thereof,  and  the  judgment  in  said  court 
in  such  cases  shall  be  the  same  as  those  now  provided,  or 
which  may  hereafter  be  provided  in  probate  cases  in  the 
county  courts  in  this  state  and  the  fees  and  costs  in  such 
cases  shall  be  the  same  as  in  probate  cases  in  the  county 
courts  of  this  state. 

321.  Duty  of  officers  -when  tax  not  paid. 

§  15.  Whenever  the  treasurer  of  any  county  shall  have 
reason  to  believe  that  any  tax  is  due  and  unpaid  under  this 
act,  after  the  refusal  or  neglect  of  the  person  interested  in 
the  property  liable  to  pay  said  tax  to  pay  the  same,  he  shall 
notify  the  state's  attorney  of  the  proper  county,  in  writing, 
of  such  refusal  to  pay  said  tax,  and  the  state's  attorney  so 
notified,  if  he  has  proper  cause  to  believe  a  tax  is  due 
and  unpaid,  shall  prosecute  the  proceeding  in  the  county 
court  in  the  proper  county,  as  provided  in  section  14  of  this 


111.,  X.]  APPENDIX  OF  STATUTES.  525 

act,  for  the  enforcement  and  collection  of  such  tax,  and  in 
such  case  said  court  shall  allow  as  costs  in  the  said  case 
such  fees  to  said  attorney  as  he  may  deem  reasonable. 

322.  Statement  in  writing. 

§  16.  The  county  judge  and  county  clerk  of  each  county 
shall,  every  three  months,  make  a  statement  in  writing  to  the 
county  treasurer  of  the  county  of  the  property  from  which 
or  the  party  from  whom  he  has  reason  to  believe  a  tax  under 
this  act  is  due  and  unpaid. 

323.  Expenses  of  proceedings. 

§  17.  Whenever  the  county  judge  of  any  county  shall  cer- 
tify that  there  was  probable  cause  for  issuing  a  summons 
and  taking  the  proceedings  specified  in  section  fourteen  of 
this  act  the  state  treasurer  shall  pay  or  allow  to  the  treasury 
of  any  county  all  expenses  incurred  for  service  of  summons 
and  his  other  lawful  disbursements  that  has  not  otherwise 
been  paid. 

324.  Book  to    be  kept  in  the  office  of  the  county- 

judge. 

§  18.  The  treasurer  of  the  state  shall  furnish  to  each  coun- 
ty judge  a  book  in  which  he  shall  enter  the  returns  made  by 
appraisers,  the  cash  value  of  annuities,  life  estates  and  terms 
of  years  and  other  property  fixed  by  him,  and  the  tax  as- 
sessed thereon  and  the  amounts  of  any  receipts  for  payments 
thereof  filed  with  him,  which  books  shall  be  kept  in  the  office 
of  the  county  judge  as  a  public  record. 

325.  Treasurer    to    pay    the     state    treasurer    all 

taxes. 

§  19.  The  treasurer  of  each  county  shall  collect  and  pay 
the  state  treasurer  all  taxes  that  may  be  due  and  payable 
under  this  act,  who  shall  give  him  a  receipt  therefor,  of 
which  collection  and  payment  he  shall  make  a  report  under 
oath  to  the  auditor  of  public  accounts  on  the  first  Monday 
in  March  and  September  of  each  year,  stating  for  what 
estate  paid  and  in  such  form  and  containing  such  particulars 
as  the  auditor  may  prescribe;  and  for  all  said  taxes  collect- 
ed by  him  and  not  paid  to  the  state  treasurer  by  the  first 
day  of  October  and  April  of  each  year,  he  shall  pay  interest 
at  the  rate  of  ten  per  cent,  per  annum. 


526  APPENDIX    OF   STATUTES.  [I11.,X. 

326.  Treasurer's  commission  or  salary. 

§  20.  The  treasurer  of  each  county  shall  be  allowed  to  re- 
tain two  per  cent,  on  all  taxes  paid  and  accounted  for  by 
him  under  this  act  in  full  for  his  services  in  collecting  and 
paying-  the  same  in  addition  to  his  salary  or  fees  now  allowed 
by  law. 

327.  Receipt. 

§  21.  Any  person  or  body  politic  or  corporate  shall  upon 
the  payment  of  the  sum  of  fifty  cents,  be  entitled  to  a  receipt 
from  the  county  treasurer  of  any  county  or  the  copy  of  the 
receipt,  at  his  option,  that  may  have  been  given  by  said  treas- 
urer for  the  payment  of  any  tax  under  this  act,  to  be  sealed 
with  the  seal  of  his  office,  which  receipt  shall  designate  on 
what  real  property,  if  any,  of  which  any  deceased  may  have 
died  seized,  said  tax  has  been  paid  and  by  whom  paid,  and 
whether  or  not  it  is  in  full  of  said  tax  and  said  receipt  may  be 
recorded  in  the  clerk's  office  of  said  county  in  which  the 
property  may  be  situated  in  the  book  to  be  kept  by  said  clerk 
for  such  purpose. 

328.  Lien  of  the  collateral  inheritance  tax. 

§  22.  The  lien  of  the  collateral  inheritance  tax  shall  con- 
tinue until  the  said  tax  is  settled  and  satisfied:  provided, 
that  said  lien  shall  be  limited  to  the  property  chargeable 
therewith:  and,  provided  further  that  all  inheritance  taxes 
shall  be  sued  for  within  five  years  after  they  are  due  and 
legally  demandable,  otherwise  they  shall  be  presumed  to  be 
paid  and  cease  to  be  a  lien  as  against  any  purchasers  of  real 
estate. 

329.  Repeal. 

§  23.  All  laws  or  parts  of  laws  inconsistent  herewith  be, 
and  the  same  are,  hereby  repealed. 


APPENDIX  OF  FORMS 

USED  UNDER  THE  NEW  YORK  STATUTE.* 


I.  Petition  of  District  Attorney  to  Enforce  Payment. 

II.  Petition  of  Executor,  etc..  for  Appraiser. 

III.  Petition  of  County  Treasurer  or  Comptroller  u  New  York  City. 

IV.  Order  for  Citation. 
V.  Citation. 

VI.  Order  Appointing  Appraiser. 

VII.  Notice  of  Appraisement. 

VIII.  Appraiser's  Report. 

IX.  Surrogate's  Notice  of  Assessment. 

X.  Decree  for  District  Attorney  Assessing  and  Fixing  Tax. 

XL  Affidavit  for  Costs  of  District  Attorney. 

XII.  Decree  for  Executor  Fixing  Tax. 

XIII.  Notice  to  Superintendent  of  Insurance. 

XIV.  Superintendent's  Report. 
XV.  Annuity  Table. 

I. 

PETITION    OF    DISTRICT   ATTORNEY    TO    EN- 
FORCE PAYMENT. 

Surrogate's  Court,  New  York  County. 

In  the  Matter  ol  the  Estate  ) 

of  I 

,  Deceased.     J 

To  the  Surrogate's  Court  of  the  City  and  County  of  New- 
York. 

The  petition  of  J.  R.  F.,  of  the  city  of  New  York,  respect- 
fully shows: 

I.  That  your  petitioner  is  the  district  attorney  of  the 
city  and  county  of  New  York. 

*  These  forms  may  be  modified  to  conform  to  the  facts  in  each  case. 
For  a  list  of  forms,  see.  also,  In  re  Astor  (Suit.)  2  N.  Y.  Supp.  630; 
Redf.  Suit.  Prac.  (5th  Ed.)  p.  1001. 

LAW  IxNHER.  (527) 


528  appendix  of  forms.  [Form  I. 

II.  That  on  or  about  the  day  of ,  1895,  at 

the  city  of  New  York, died,  and  was  at  the  time  of 

h death  a  resident  of  the  city  and  county  of  New  York. 

III.  That  said  deceased  left  a  last  will  and  testament 

dated ,  18 — ,  which  was  duly  admitted  to  probate  in 

the  office  of  the  surrogate  of  the  county  of  New  York,  on 

the  day  of  ,  18 — ,  wherein  and  whereby  he 

appointed ,  who  duly  qualified  as  such,  and  said  let- 
ters are  still  in  force. 

IV.  That  said  decedent  died  seized  or  possessed  of  prop- 
erty within  this  state,  or  subject  to  its  laws,  the  value  of 
which  exceeded  the  sum  of  five  hundred  dollars. 

V.  That  upon  the  death  of  said  certain  of  the 

property  of  said  decedent  thereupon  passed  to . 

VI.  That  none  of  the  persons  designated  in  the  foregoing- 
paragraph,  No.  V.  of  this  petition,  is  a  person  or  corpora- 
tion exempt  by  law  from  taxation. 

VII.  That  the  property  so  passing,  or  some  part  thereof, 
is  subject  to  taxation  under  chapter  399  of  the  Laws  of  this 
state,  passed  April  30,  1892,  entitled  "An  act  in  relation  to 
taxable  transfers  of  property-" 

The  foregoing  allegations  are  made  on  information  and 
belief. 

VIII.  Your  petitioner  further  shows  that  the  comptroller 
of  the  city  and  county  of  New  York  [or  the  county  treasurer 

of  the  county  of  ]  has  notified  your  petitioner  in 

writing  of  the  refusal  or  neglect  of  the  persons  liable  there- 
for to  pay  the  said  tax,  and  that  no  part  of  said  tax  has 
been  paid,  and  your  petitioner  has  probable  cause  to  believe 
that  the  same  still  remains  due  and  unpaid. 

Wherefore,  your  petitioner  prays  that  a  citation  issue 

herein  to ,  citing to  appear  before  this  court 

on  a  day  to  be  designated  therein,  and  show  cause  why  the 
tax  under  the  act  aforesaid  should  not  be  paid,  and  said 
property  be  appraised  if  necessary  for  that  purpose. 

Dated  the day  of ,  1895. 


District  Attorney  of  the  City  and  County  of  New  York. 
State  of  New  York, 


City  and  County  of  New  York 

John  R.  Fellows,  being  duly  sworn,  says,  that  he  has  read 
the  foregoing  petition  and  knows  the  contents  thereof,  and 
that  the  same  is  true  to  the  knowledge  of  deponent,  except 


Form  II.]  appendix  of  forms.  529 

as  to  the  matters  therein  stated  to  be  alleged  upon  infor- 
mation and  belief,  and  as  to  those  matters  he  believes  it 
to  be  true. 

Sworn  to  before  me  this 1 


day  of ,  1895. 


II. 


PETITION  OF  EXECUTOR,  ETC.,  FOR  AP- 
PRAISER. 

[Title.] 

To  ,  Surrogate. 

The  petition  of  A.  respectfully  shows: 

First.  Your  petitioner  is  the  executor  named  in  the  last 
will  and  testament  of  the  decedent,  and  as  such  is  a  person 
interested  in  the  estate  of  the  above  named  decedent. 

Second.  That  the  said   decedent  departed  this  life  on 

the day  of  1895,  in  the  city  of ,  and  that  he 

was  a  resident  [or,  non-resident]  of  this  state. 

Third.  That  said  decedent  left  a  last  will  and  testament, 

which  was  on  the  day  of  duly  admitted  to 

probate,  and  that are  the  executors  of  said  will  and 

their  post-office  addresses  are:    [naming  them.] 

Fourth.  That,  as  your  petitioner  is  informed  and  believes, 
the  property  of  said  decedent,  passing  by  said  will,  or  some 
portion  thereof,  or  some  interest  therein,  is  subject  to  the 
payment  of  the  tax  imposed  by  the  law  in  relation  to  tax- 
able transfers  of  property. 

Fifth.  That  all  the  persons  who  are  interested  in  said 
estate  and  who  are  entitled  to  notice  of  all  proceedings 
herein,  including  the  comptroller  of  the  city  of  New  York 
[or,  county  treasurer],  and  their  post-office  addresses,  are  as 
follows,  viz.: 

Wherefore,  your  petitioner  prays  that  you  will  appoint 
some  competent  person  as  appraiser  as  provided  by  law. 

And  your  petitioner  will  ever  pray. 

,  Petitioner. 

[Verification.] 

LAW  INHER. — 34 


530  appendix  of  forms.         [Forms  III.-V. 


III. 

PETITION  OF  COUNTY  TREASURER  OR  COMP- 
TROLLER IN  NEW  YORK  CITY. 

[Under  chapter  399,  Laws  N.  Y.  1892,  §  11,  these  offi- 
cials are  also  authorized  to  make  application  for  the  ap- 
pointment of  an  appraiser.  After  alleging  the  official  title 
of  the  petitioner,  the  form  may  be  made  to  conform  to 
No.  H.] 

IV. 

ORDER  FOR  CITATION. 

At  a  surrogate's  court  held  at  the  office  of  the  surrogate, 
in  the  county  of ,  on  the day  of ,  18 — . 

Present:     Hon. ,  Surrogate. 

In  the  Matter  of  the  Estate  'j 
of  I 
,  Deceased.  J 

On  reading  and  filing  the  petition  of ,  of  the  county 

of  New  York,  verified  the day  of ,  18 — .     It  is 

ordered,  that  a  citation  issue  herein  in  accordance  with 
the  prayer  of  said  petitioner. 

,  Surrogate. 

V. 
CITATION. 

The  people  of  the  state  of  New  York,  by  the  grace  of  God, 
free  and  independent.     To send  greeting: 

You  and  each  of  you  are  hereby  cited  and  required  per- 
sonally to  be  and  appear  in  the  court  of  the  surrogates  of  the 
city  and  county  of  New  York,  at  the  county  court  house,  in 

said  city,  on  the day  of ,  1895,  at o'clock 

in  the  noon,  to  show  cause  why  the  tax  imposed  by 

chapter  399  of  the  Laws  of  1892  of  the  state  of  New  York 
should  not  be  paid  on  property  passing  to  you  under  the  will 

of  ,  deceased,  proved  herein  by  decree  entered  the 

day  of ,  1895,  and  why  such  property  should 


Forms  V.,VL]  appendix  of  forms.  531 

not  be  appraised  according  to  law,  if  necessary  for  that  pur- 
pose. 

And  such  of  you  hereby  cited  as  are  under  the  age  of  twen- 
ty-one years,  are  required  to  appear  by  your  guardian,  if  you 
have  one,  or  if  you  have  none,  to  appear  and  apply  for  one 
to  be  appointed,  or  in  the  event  of  your  neglect  or  failure  to 
do  so,  a  guardian  will  be  appointed  by  the  surrogate  to  rep- 
resent and  act  for  you  in  the  proceeding. 

In  testimony  whereof,  we  have  caused  the  seal  of  the  sur- 
rogate's court  to  be  hereunto  affixed. 

Witness, ,  Esq.,  surrogate  of  our  said  county,  at  the 

city  of  New  York,  the day  of ,  in  the  year  of 

our  Lord,  one  thousand  eight  hundred  and  ninety -five. 


Clerk  of  the  Surrogate's  Court. 

VI. 
ORDER  APPOINTING  APPRAISER. 


[Caption.] 
Estate  of  — 


On  reading  and  filing  the  petiton  of ,  praying  for 

the  appointment  of  some  competent  person  as  appraiser,  un- 
der and  pursuant  to  the  law  to  tax  transfers  of  property,  in 
certain  cases,  it  is  i 

Ordered,  that ,  Esq.,  be  and  he  hereby  is  appointed 

such  appraiser. 

And  it  is  further  ordered,  that  said  appraiser  shall  give 
the  notice  required  by  said  law,  in  the  manner  and  at  the 
time  therein  set  forth  (and  said  notice  shall  be  five  days,)  to 
the  following  persons,  and  to  all  other  persons  known  to 
have  or  claim  an  interest  in  the  property  of  the  decedent  in 
the  above  entitled  proceeding,  subject  to  the  payment  of 
said  tax;  viz. :  [Here  take  in  names  of  persons,  corporations,  and 
public  officials  to  be  served  with  notice."] 


532  appendix  of  forms.     [Forms  VII. ,  VIII. 

VII. 
NOTICE  OF  APPRAISEMENT. 

Surrogate's  Court,  County  of  New  York. 

In  the  Matter  of  the  Estate  "j 

of  V  Transfer  Tax. 

A.,  Deceased.  j 

You  will  please  to  take  notice  that,  by  virtue  of  an  order 

of  Hon. ,  surrogate  of  the  county  of  New  York,  made 

and  dated  the day  of ,  1895,  and  pursuant  to 

the  provisions  of  chapter  399  of  the  Laws  of  1892,  entitled 
"An  act  in  relation  to  taxable  transfers  of  property,"  I  shall, 

on  the day  of ,  1895,  at o'clock  in  the 

noon  of  that  day,  at  the  office  of  ,  No.  

street,  in  the  city  of  New  York,  proceed  to  appraise  at  its 

fair  market  value,  all  the  property  of  said ,  deceased, 

late  of  said  city,  passing  by  his  last  will  and  testament  or 
by  the  intestate  laws  of  the  state  of  New  York,  which  is  sub- 
ject to  the  payment  of  the  tax  imposed  by  the  said  act. 

New  York, ,  1895. 

,  Appraiser. 

To . 

vni. 

APPRAISER'S  REPORT.1 

Surrogate's  Court,  County  of  New  York. 

In  the  Matter  of  the  Estate  "| 

of  V Transfer  Tax. 

A.,  Deceased.  J 

To  the  Surrogate's  Court,  County  of  New  York. 

I,  the  undersigned,  who  was,  by  an  order,  made  and  en- 
tered on  the day  of ,  1895,  appointed  appraiser, 

under  and  in  pursuance  of  the  law  in  relation  to  the  taxable 
transfers  of  property,  a  certified  copy  of  which  order  is  here- 
to attached,  respectfully  report: 

First.  That  forthwith  after  my  said  appointment  I  took 

i  This  form  was  used  in  Re  Minturn,  3  N.  Y.  Law  J.  804,  and  is 
given  more  in  detail  for  its  practical  use. 


Form  VIII.]  APPENDIX   OF   FORMS.  533 

and  subscribed  the  oath  hereto  attached,  and  I  gave  notice 
by  mail,  postage  prepaid,  to  all  persons  known  to  have  or 
claim  an  interest  in  all  property  subject  to  the  tax  imposed 
by  said  law,  and  to  the  following  named  persons,  being  those 
named  by  the  surrogate  in  the  said  order,  of  the  time  and 
place  I  would  appraise  the  property  of  A.,  deceased,  subject 
to  the  payment  of  said  tax;  a  true  copy  of  said  notice  is  also 
hereto  attached,  viz.:  {Here  take  in  names  of  all  persons  entitled 
to  notice  and  notified.'] 
Second.  I  further  report,  that  at  the  time  and  place  in  said 

notice  stated,  to  wit,  on  the day  of ,  18 — ,  at 

No. ,  in  the  city  of  New  York,  and  at  other  and  subse- 
quent times  and  at  divers  places,  I  appraised  all  the  property 

of  said ,  deceased,  now  subject  to  the  payment  of  said 

tax,  at  its  fair  market  value,  as  follows,  to  wit: 2 

A  legacy  in  cash  of  $5,000  payable  on  the  death  of 
decedent's  wife  who,  at  the  time  of  his  death,  was  of 
the  age  of  78  years  and  7  months,  the  present  value 
of  said  sum  of  f  5,000  being f  4,166.66 

bequeathed  to  [giving  in  succession  the  name  of  each  legatee,  and 
particulars  as  to  estate  taken  under  the  will,  or  by  law  in  cases  of 
intestacy]. 

******* 

,  the  testator,  by  his  will,  among  other  things,  di- 
rects his  executors  on  the  death  of  his  wife  to  pay  out  of  his 
residuary  estate  certain  sums  of  money  to  individuals  therein 
named ;  and  in  case  of  the  death  of  any  said  persons  before 
his  wife,  or  before  he  or  she  shall  become  entitled  to  said  sum 
of  money,  then  such  sum  is  to  be  paid  to  the  issue  of  the  one 
so  dying,  and  failing  such  issue,  becomes  part  of  the  residue 
of  the  estate  of  decedent  which,  under  his  will  is  bequeathed 
to  his  son  ,  and  who,  if  he  should  predecease  dece- 
dent's wife  has  a  power  of  appointment,  by  a  will,  of  such 
residue.  The  names  of  such  persons  together  with  sums  re- 
spectively bequeathed  to  them  and  the  present  values  thereof 
at  the  time  of  decedent's  death  are  as  follows: 

******* 

In  the  event  of  any  of  said  persons  or  their  issue  becoming 
entitled  to  such  property  above  mentioned,  the  present  cash 
values  thereof  as  above  appraised  will  then  become  subject 

2  This  clause  should  contain  a  minute  description  of  the  property 
appraised,  name  of  owner  or  person  interested  therein,  and  his 
post-office  address,  and  the  fair  market  value  of  such  property. 


534  appendix  of  forms.     [Forms  VIII. ,  IX. 

to  the  payment  of  the  tax  imposed  by  said  act,  but  the  liabil- 
ity to  such  payment  cannot  now  be  determined. 

The  following  are  the  appearances  before  the  appraiser: 
The  executors,  by ,  attorneys,  who  object  to  any  ap- 
praisal of  the  property  passing  to  the  corporations  mentioned 
in  the  will,  on  the  ground  that  the  life  tenant  (decedent's 
wife)  is  not  dead,  and  that  the  tax,  if  any,  on  said  property 
is  not  payable  until  after  her  death ;  and  also  that  the  leg- 
acies to  individuals  named  in  the  will,  and  payable  on  the 
death  of  decedent's  wife,  cannot  now  be  taxed  on  the  ground 
that  such  persons  may  never  become  entitled  thereto,  and 
which  cannot  be  determined  until  the  death  of  the  life-ten- 
ant, &c. 

*  » 

All  of  which  is  respectfully  submitted. 

Dated  New  York, ,  18—. 

,  Appraiser. 


IX. 
SURROGATE'S  NOTICE  OF  ASSESSMENT. 

Surrogate's  Court,  City  and  County  of  New  York. 
In  the  Matter  of  the  Estate  ) 

of  y 

-  ,  Deceased.   J 

You  are  hereby  notified  that  at  the  surrogate's  court 
of  the  city  and  county  of  New  York,  to  be  held  on  the 

day  of ,  1895,  at  10:30  a.  in.,  at  the  county 

court  house,  in  the  city  of  New  York,  I  shall,  from  the  re- 
turn and  report  of  the  appraiser  filed  herein  on  the 

day  of  ,  18 — ,  assess  and  fix  the  cash  value  of  all 

such  interest,  estate,  annuity,  legacy  or  property  as  you  and 
each  of  you  are  given  or  entitled  to  receive  from  or  out  of 

the  estate  left  by  the  said ,  deceased,  and  the  amount 

of  the  tax  to  which  the  same  is  liable  under  chapter  399, 
Laws  1892. 

Dated  New  York, ,  1895. 

,  Surrogate. 

To . 


Form  X.]       appendix  of  forms.  635 


DECREE    FOR  DISTRICT   ATTORNEY    ASSESS- 
ING AND  FIXING  TAX. 

At  a  surrogate's  court,  held  in  and  for  the  county  of  New 
York,  at  the  county  court  house,  in  the  city  of  New  York, 
on  the day  of ,  1894. 

Present:     Hon. ,  Surrogate. 

In  the  Matter  of  the  Estate  ") 

of  \ 

■ ,  Deceased.    J 

Upon  reading  and  filing  the  report  of ,  Esq.,  the  ap- 
praiser herein,  and  after  hearing ,  on  behalf  of  Hon. 

John  R.  Fellows,  district  attorney,  in  support  of  said  report, 

and ,  of  counsel  for  the herein,  in  opposition, 

it  is 

Ordered:  1st — That  the  cash  value  at  the  date  of  dece- 
dent's death,  of  the  property  and  interests  mentioned  and 
described  in  said  report,  which  are  subject  to  the  payment  of 
the  tax  due,  under  the  law  in  relation  to  taxable  transfers 
of  property,  is  as  follows: 

Interest  of $ 

2d— That 

the herein,  make  payment  to  the  comptroller  of  the 

city  of  New  York,  of  the  sum  of dollars  (f ), 

being  the  amount  of  the  tax  upon  the  interest  of  said , 

together  with  interest  upon  each  of  said  sums,  respectively, 

at  the  rate  of per  centum  per  annum,  from  the 

day  of ,  189-  to  the  date  of  payment. 

And  it  is  further  ordered,  that  said pay  to  Hon. 

the  sum  of dollars,  as  and  for  his  costs  and 


disbursements  herein. 


536  appendix  of  forms.  [Form  XI. 


XI. 

AFFIDAVIT  FOR  COSTS  OF  DISTRICT  AT- 
TORNEY. 

[Title.] 

City  and  County  of  New  York,  ss. 

being  duly  sworn,  says,  that  he  is  in  the 


office  of  the  district  attorney  for  the  county  of  New  York, 
and  as  such  has  had  charge  of  the  above  entitled  proceeding, 
and  is  familiar  with  all  the  steps  taken  therein. 

That  this  is  a  proceeding  brought  by  the  district  attorney, 
under  section  15  of  chapter  399  of  the  Laws  of  1892,  to  en- 
force payment  of  the  transfer  tax  due  under  said  chapter  399. 

That  in  order  to  properly  draw  the  petition  in  the  above 
matter  it  was  necessary  for  deponent  to  cause  an  examina- 
tion to  be  made  of  the  records  in  the  surrogate's  office  of  this 
county,  and  also  of  the  will  of  said  deceased,  which  was  pro- 
bated in  said  court,  for  the  purpose  of  ascertaining  the  per- 
sons liable  to  pay  the  transfer  tax;  and  upon  the  informa- 
tion so  obtained,  deponent  drew  the  petition  herein ;  applied 
for  citation;  procured  an  order  therefor;  had  the  citation 
served;  filed  the  proper  proofs  to  have  the  matter  placed 
upon  the  calendar  of  this  court  upon  the  return  day  of  said 
citation ;  and  appeared  in  court  on  said  return  day. 

Deponent  verily  believes  that  this  is  a  proper  case  where 

a allowance  should  be  made  to  the  district  attorney, 

for  costs,  as  provided  by  law. 

Sworn  to  before  me  this 1 


day  of ,  1895. 


Form  XII.]  appendix  of  fokms.  637 

xn. 

DECREE  FOR  EXECUTOR  FIXING  TAX. 

Present:  Hon. ,  Surrogate. 

In  the  Matter  of  the  Estate  ) 

of  V 

,  Deceased.    J 

On  reading  and  filing  the  report  of ,  Esq.,  the  ap- 
praiser herein,  Ordered, 

First.  The  said  report  is  in  all  respects  confirmed. 

Second.  That  the  fair  market  value  of  the  property  men- 
tioned and  described  in  said  report,  which  is  subject  to  the 
payment  of  the  tax  imposed  by  the  law  in  relation  to  the 
taxable  transfers  of  property  is  as  follows; 

Interest  of $ 

"         " | 

Third.  That  the  amount  of  the  tax  to  which  the  said  prop- 
erty and  interests  are  liable  is  as  follows,  viz. : 

On  interest  of $ 

U  it  $ 

together  with  interest  [or  penalty  where  one  is  imposed] 

upon  each  of  said  sums,  respectively,  at  the  rate  of 

per  centum  per  annum,  from  the day  of ,  189- 

to  the  date  of  payment.3 

s  Chapter  399,  Laws  1892,  §  13,  provides  for  an  appeal  from  these 
orders,  which  must  be  taken  to  the  surrogate  within  60  days  after 
the  order  is  filed.  The  grounds  of  appeal  should  be  specifically 
stated,  and  no  other  grounds  will  be  considered  by  the  surrogate. 


538 


appendix  of  forms.     [Forms  XIII. ,  XIV. 


xni. 

NOTICE  TO  SUPERINTENDENT  OF  IN- 
SURANCE. 

Chambers  of  the  Surrogate, 
New  York  County. 


New  York, 


-,  1895. 


Dear  Sir: — In  pursuance  of  chapter  399,  Laws  of  1892, 
you  are  hereby  requested  to  determine  and  ascertain  the  val- 
ues of  the  following'  estates,  annuities  and  interests. 


Name. 

Age. 

Legacy  or  Estate. 

Value  or  Amount. 

To ,  Superintendent 

of  the  Insurance  Department. 

Yours  respectfully, 


-,  Surrogate. 


XIV. 

SUPERINTENDENT'S  REPORT. 

Insurance  Department. 

Estate  of ,  Deceased. 

Albany,  N.  Y., ,  1895. 

Sir: — In  reply  to  your  request  of  the ,  inst.,  I  give 

below  the  present  values  desired: 


Name. 


Legacy. 


P.  V.  at  Date. 


To  Hon. 


Very  respectfully, 

,  Superintendent. 

-,  Surrogate County,  N.  Y. 


Form  XV.] 


APPENDIX    OF    FOKMS. 


539 


XV. 

ANNUITY  TABLE. 

Table  showing  the  value  of  an  annuity  of  one  dollar  on  a 
single  life,  according  to  the  table  published  by  Jenkins 
Jones,  London,  1843,  of  mortality,  at  five  per  cent,  interest 
This  table  is  employed  by  the  insurance  department. 


No.  of 

No.  of 

No.  of 

No.  of 

Years 

Years 

Years 

Years 

Age. 

Purchase 
the 

Age. 

Purchase 
the 

Age. 

Purchase 
the 

Age. 

Purchase 
the 

Annuity 

Annuity 

Annuity 

Annuity 

is  Worth 

31 

is  Worth 

61 

is  Worth 

91 

is  Worth 

1 

$11,563 

$12,965 

$8,181 

$1,447 

2 

13,420 

32 

12,854 

62 

7,966 

92 

1,153 

3 

14,135 

33 

12,740 

63 

7,742 

93 

816 

4 

14,613 

34 

12,623 

64 

7,514 

94 

524 

5 

14,837 

35 

12,502 

65 

7,276 

95 

238 

6 

15,041 

36 

12,377 

66 

7,034 

7 

15,166 

37 

12,249 

67 

6,787 

8 

15,226 

38 

12,116 

68 

6,536 

9 

15,210 

39 

11,979 

69 

6,281 

10 

15,139 

40 

11,837 

70 

6,023 

11 

15,043 

41 

11,695 

71 

5,764 

12 

14,937 

42 

11,551 

72 

5,504 

13 

14,826 

43 

11,407 

73 

5,245 

14 

14,710 

44 

11,258 

74 

4,990 

15 

14,588 

45 

11,105 

75 

4,744 

16 

14.460 

46 

10,947 

76 

4,511 

17 

14,334 

47 

10,784 

77 

4,277 

18 

14,217 

48 

10,616 

78 

4,035 

19 

14,108 

49 

10,443 

79 

3.776 

20 

14,007 

50 

10,269 

80 

3.515 

21 

13.917 

51 

10,097 

81 

3,263 

22 

13,833 

52 

9,925 

82 

3,020 

23 

13,746 

53 

9,748 

83 

2,797 

24 

13,658 

54 

9,567 

84 

2,627 

25 

13,567 

55 

9,382 

85 

2,471 

26 

13,473 

56 

9,193 

86 

2,328 

27 

13,377 

57 

8,999 

87 

2,193 

28 

13,278 

58 

8,801 

88 

2,080 

29 

13,177 

59 

8,599 

89 

1,924 

80 

13,072 

60 

8,392 

90 

1,723 

RULES  FOR  COMPUTING  THE  VALUE  OF  THE  LIFE 
ESTATE  OR  ANNUITY 

Calculate  the  interest  at  5  per  cent,  for  one  year  upon  the 
sum  to  the  income  of  which  the  person  is  entitled.     Multi- 


540  appendix  of  forms.  [Form  XV. 

ply  this  interest  by  the  number  of  years'  purchase  set  oppo- 
site the  person's  age  in  the  table,  and  the  product  is  the 
gross  value  of  the  life  estate  of  each  person  in  said  sum. 

Examples: 

Suppose  a  widow's  age  is  37,  and  she  is  entitled  to  dower 
in  real  estate  worth  $350.75.  One-third  of  this  is  $116,91§. 
Interest  on  $116.91  one  year,  at  five  per  cent.,  is  $5.85.  The 
number  of  years'  purchase  which  an  annuity  of  one  dollar 
is  worth,  at  the  age  of  37,  as  appears  by  the  table,  is  12 
years  and  249/iooo  parts  of  a  year,  which,  multiplied  by  $5.85, 
the  income  for  one  year,  gives  $61.75  and  a  fraction  as  the 
gross  value  of  her  right  of  dower. 

Suppose  a  man,  whose  age  is  50,  is  tenant  by  the  curtesy 
in  the  whole  of  an  estate  worth  $9,000.  The  annual  interest 
on  the  sum,  at  5  per  cent,  is  $450.  The  number  of  years' 
purchase  which  an  annuity  of  $1  is  worth,  at  the  age  of  50, 
as  per  table,  is  10269/  1000  parts  of  a  year,  which,  multiplied 
by  $450,  the  value  of  one  year,  gives  $4,621.05  as  the  gross 
value  of  his  life  estate  in  the  premises,  or  the  proceeds  there- 
of. 


TABLE  OF  CASES. 


[REFERENCES  are  to  pages.] 


A 


Acker,  In  re,  416. 
Ackerman  v.  Gorton,  287. 
Advocate-Gen.,    Brown    v.,    336. 
v.  Ramsey,  340. 
Thompson    v.,    146,    159,    161, 
169,    171,    195. 
Alexander,  In  re,  55,  65,  149,  Y60, 

173,  177,  179. 
Allen  v.  Pliila.,  148,  175. 
Alvaney  v.  Powell,  146,  148,  149, 
159,  160,  137,  168,  169,  179,  187, 
191,  195,  197,  200,  371. 
Am.  Coal  Co.  v.  Comm.  of  Alle- 
gany Co.,  168,  173,  194. 
Am.     Geo.     Soc.     v.     Comm.     of 

Taxes,  95. 
Anderson  v.  Anderson,   131,  349, 

386,  394. 
Andover  Co.  v.  Gould,  387. 
Appeal   of   Alexander,    149,    160, 

177,   179. 
Appeal    of    Com.,    131,    199,    200, 
265,    412. 
(Avery's   Est.),   219,   407,  412, 

413. 
(Bittinger's  Est.),  30,  44,  57, 
65,  67,  135,  143,  146,  149, 
150,  152,  167,  192,  194, 
317,  371,  377,  399,  412, 
423. 
(Coleman's     Est.),     157,     173, 

177,  178,  196,  324. 
(Cooper's  Est.),  57,  210,  218, 
223,  226,  234,  235,  239, 
241,  242,  262,  270,  272, 
301,  304.  317,  318,  319, 
320,  321,  322,  323,  324. 
325,  407,  412,  418,  423. 
LAW  INHER.  (541j 


Appeal  of  Com.— Cont'd, 

(Fagely's  Est.),  210,  235,  259, 
262,    301,    318,    324,    303, 
376,    377,    399,    412,    413, 
415,  417,  423. 
(Kerr's  Est.),  385. 
(Pepper's  Est),  384. 
(Small's  Est),  41,  64,  65,  145, 
146,    147,    150.    151,    152, 
154,    157,    167,    174,    176, 
179,    190,    194,    196,    385, 
413. 
Appeal  of  Coxe,  214,  329,  369. 
Davenport,   329,   331. 
Drayton,  44,  152,  157,  197,  3$L. 
Du  Bois,  329,  331,  333,  335. 
Folmer,    114. 
Fosselman,  259,  263. 
James,  235,  236,  237,  260,  318, 
319,    320,    325,    374,    377, 
390,    407,    412,    419. 
Mellon,  219,  233,  235,  236,  237, 
240,    241,    242,    246,    260, 
272,    299,    301,    304,    318, 
319,    320,    321,    323,  325, 
326,    377,    407,    409,    411, 
412,    413,    423. 
Orcutt,  55,  149,  151,  166,  171, 
173,    174,    175,    176,    190, 
191,    194,    197,    199,    219, 
333,    407. 
Packard,  121,  123. 
Phila.  Pro.  City  Mission,  142, 

143,    378. 
Reck,  326. 
Rhymers,  113. 

Seibert,   113,    329,     331,    333, 
-537,    374,    377,    382,    389, 
390. 
Tyson,  347. 


542 


TABLE    OF    CASES. 


[References  are  to  Pages.] 


Appeal  of  Waugh,  329,  334. 

Wrigibt,  329,  331,  369,  374,  378. 
Arnaud  v.  Holland,  424. 
Arnaud's  Heirs  v.  His  Executor, 

7,  32,  58,  60. 
Arnett,  In  re,  121,  356,  357,  358, 
359,  376,  395,  397,  400,  420,  422, 
423. 
Arnold  v.  Arnold,   149,   161,   162. 
Assn.  Col.  Orphans  v.  Mayor,  74, 
94,  97,   101,   102,   103,    104,   105, 
108,  110. 
Astor,   In  re,  201,   209,  211,  212, 
213,  214,  215,  218,  258,  263,  354, 
355,  356,  360,  368,  377,  386,  394, 
396,  398,  399,  400,  401,  406. 
Atkinson  v.  Anderson,  131. 
Attorney-General    v.    Abdy,    113, 
115. 
v.  Allen,  369,  378,  382. 
v.  Beetson,  159,  160,  171,  179. 
v.  Bouwens,  166,  174. 
v.  Brackenbury,   340,  342. 
v.  Campbell.  161,  164,  165. 
v.  Chapman,  340. 
Charlton  v.,  342. 
v-  Cleave,   9. 

v.  Cockerill,  159,  160,  171,  179. 
Cullen  v.,  92,  93,  133,  334,  336. 
v.  Dardier,  210,  217,  258,  262, 

419. 
v.  Dodd,   153. 

v.  Dunn,  158,  161,  162,  166. 
v.  Gell,  315. 
Pisk   v.,  326. 

v.  Fitzjohn,    10,   164,   315. 
V.  Forbes,  161. 
v.  Giles,  405. 
v.  Holbrook,  347. 
v.  Holford,  340,  384. 
v.  Hope,   160,    171. 
v.  Hubbuck,  153. 
v.  Jackson.  161. 
v.  Littledale,  9. 
v.  Lyod,  144. 
v.  Mangles,  340* 


Attorney  General  v.  Middleton,  10, 
57,  274,  315,  418. 
v.  Montifiore,  329,  330. 
v.  Munby,   340,  373,   392. 
v.  Napier,    57,    149,    158,    160, 

161,  162,  166. 

v.  Pierce,  236,  319,  389. 

v.  Ramsay,  340. 

v.  Sefton,   210,  217,   262,  419. 

v.  Simcox,   340. 

v.  Upton,  312,  315,  342. 

v.  Wahlstatt,   158,  166. 

v.  Wallace,  66,  159,  160,  161, 

162,  164,    167,    171,    191, 
199.    200. 

v.  Yelverton,  208. 
Avery's  Est.,  219,  407,  412,  413. 


15 


Bacon's  Est.,  In  re,  171,  173,  177, 

199. 
Badart,  In  re,  159,  164,  165. 
Bailey  v.  Boult,  379. 

v.  Mason,  424. 
Balleis'  Est,  In  re,  116,  117,  118. 
Baltimore  v.  R.  R.  Co.,  173,  194. 
Bank  v.  Sharp,  171,  177. 
Banks  v.  Mayor,  60. 
Banks'  Est,  In  re,  390,  411,  413, 

415,  423. 
Bank  Tax  Cases,  60. 
Barbier  v.  Connolly,  52. 
Barksdaile  v.  Gilliat,  379. 
Barringer  v.  Cowan,  94,  100,  104, 

111. 
Bartlett,  In  re,  346. 
Bate  v.  Payne,  373,  382,  390,  392. 
Beach  v.  Hollister,  228,  269,  284. 
Bell's  App.  (Stewart's  Est.),  408. 
Bell's   Gap   R.   Co.  v.   Penn.,  37, 

47,  68. 
Beetson,  Atty.-Gen.  v.,   159,  160, 

171,  179. 
Bemis  v.  Boston,  50. 


TABLE    OF    CASES. 


643 


[References  are  to  Pages.] 


Benet,   In  re,  213,  246,  288,  299, 

303. 
Benjamin,   In   re,   228,    246,   247, 

255,  285,  288. 
Biddle's  Est.,  In  re,  336. 
Big  Black  Creek  Co.  v.  Com.,  242. 
Bird,  In  re,  122,  142,  211,  217,  218, 

227,  229,  261,  262,  369,  423. 
Birkett,  In  re,  112. 
Birtwhistle  v.  Vardill,  169,  195. 
Bispham,  In  re,  266,  267,  379. 
Bittinger's  Est.,  In  re,  15,  30,  44, 

57,  65,  67,  135,  143,  146,  149,  150, 

152,     167,     192,     194,    232,    317, 

371,  377,  399,  412,  423. 
Black,  In  re,  113. 
Blake  v.  McCartney,  8,  275,  316, 

418. 
Bonaparte  v.  Tax  Court,  50,  65, 

146. 
Bondon,    In   re,   58,   59,   168,   171, 

172,  182. 
Bowditch  v.  Ayrault,  153. 
Boyd's  Est.,  In  re,  363,  372,  381, 

382,  394,  410. 
Boyle,  Com.  v.,  135,  142,  212,  230. 
Bradford  v.  Jones,  47. 
Bradshaw,  In  re,  351. 
Brenner,  Com.  v.,  149. 
Brettun  v.  Fox,  35. 
Brewer's    Est.,    In    re,    243,    246, 

247,  248,  262,  286,  299,  326,  329, 

363,  376,  377,  399,  411,  412,  417. 
Brewster,  In  re,  243,  299. 
Brooks,    In   re,   80,   82,    121,   307, 

312,  340,  422. 
Brown  v.  Adv.-Gen.,  336. 
Bruce,  In  re.,  161,  246,  248,  285, 
287,  301,  303,  304. 
v.  Bruce,  149,  161,  195. 
Brune    v.    Smith,    144,    275,    384, 

393. 
Budd's  Est,  In  re,  265,  271,  272, 

320. 
Butler,   In  re,  122,  124,  127,  130, 

271,  407,  408. 


c 

Cager,  In  re,  40,  82,  121,  134,  135, 

136,  142,  191,  225,  228,  229,  243, 

245,  247,  248,  255,  265,  276,  285, 

287,  299,  304,  326,  378,  379,  420, 

422. 
Campbell,  Atty.-Gen.  v.,  161,  164, 

165. 
Cahn,  In  re,  211. 
Capdevielle,  In  re,  158,  166. 
Capron,  In  re,  123,  124,  129. 
Carpenter  v.  Penn.,  7,  32,  55,  56, 

61,   115,  135,  402,  418. 
Carver's   Est.,   In   re,  41,   59,  60. 
Catlin   v.    For.    and   Dom.    Miss. 
Soc,  97,  98. 
v.  Hull,  169,  173,  175,  180,  195. 
v.  Trustees  Trin.  Col.,  79,  93, 
94,    95,    97,    99,    102,    106, 
112,    115,    116,    118,    155, 
180,    352. 
Central  Trust   Co.  v.   R.  R.   Co., 

349,   386,   394. 
Chambe  v.  Durfee,  34,  37,  46,  52, 

389,  404. 
Chardavoyne,  In  re,  80,  134,  420. 
Charlton  v.  Atty.-Gen.,  342. 
Chase  v.  R.  R.  Co.,  411. 
Chatfield  v.  Berchtoldt,  149,  165, 

168,  190. 
Chittenden,  In  re,  94,  96,  97,  99, 

101,  107. 
Christian's  Est.,   In  re,  265,   266, 

270. 
Church  Charity  v.   Peo.,  97,  102, 

113. 
Church  of  St.  Monica  v.   Mayor, 

78,  84,  112. 
Cigala,  In  re,  146,  149,  164,  166, 

174,  175,  371. 
Citizens'  Bank  v.  Sharp,  171,  177. 
City   of   Baltimore   v.    Baltimore 

R.  R.  Co.,  173. 
Clapp    v.    Mason,    231,    274,    316, 

410,  424. 


544 


TABLE    OF    CASES. 


[References  are  to  Pages.] 


Clark's  Est,  In  re,  66,  134,  159, 
160,  168,  175,  181,  191,  227,  228, 
246,  247,  248,  250,  255,  256,  266, 
268,  270,  271,  285,  301,  303,  304, 
305,  360,  391. 
Clymer  v.  Com.,  31,  33,  60. 
Clymer's  Est.,  133. 
Coales,  In  re.,  149,  162. 
Cockerill,  Atty.-Gen.  v.,  159,  160, 

171,  179. 
Cockey's    Est.,    In   re,    214,    256, 
258,  271,  359,  360,  391,  397,  401. 
Cogswell's   Est.,    In  re,  245,   246, 

282,  285,  307,  418. 
Coleman,  People  v.,  50. 
Coleman's  Est.,  In  re,  50,  150,  152, 
154,  157,  173,  174,  177,  178,  190, 
194,  196. 
Colhoun,  In  re,  219,  221,  416,  417. 
Com.'s  App.,    15,    173,    177,    178, 
199,   200,   259,   265,   412. 
(Avery's   Est.).   407,   412,  413. 
(Bittinger's    Est.),   15,   30,   44, 
57,  65,  67,   143,   146,  149, 
150,    167,    192,    194,    232, 
317,  371,   377,  399. 
(Coleman's  Est.),  177,  178,  324. 
(Cooper's    Est.),   57,    210,    218, 
223,    226,    234,    235,    239, 
241,    242,    262,    270,    272, 
301,    304,    317,    318,    319, 
320,    321,    322,    323,    324, 
325,    423. 
(Fagely's  Est),  210,  235,  259, 
262,    301,    318,    324,    362, 
376,    377,    399,    412,    413, 
415,     417,     423. 
(Kerr's  Est.),  385. 
(Pepper's  Est.),  384. 
(Small's  Est.),  16,  34,  41,  64, 
65,  145,  146,  147,  150,  151, 
152,    154,    157,    167,    174, 
176,    179,    190,    194,    195, 
385,    413. 
Com.   v.    Bausman,   412,   413. 
v.  Boyle,  135,  142,  212,  230. 
v.  Brenner,  149. 


Com.  v.  Chesapeake  &  Ohio  R.  R.r 

171,  173. 
Clymer  v.,  31,  33,  60. 
v.  Coleman,   16,  44,   152,   156, 

157,    199,    201,    219,    262, 

364,    369,    371,    372,    381, 

403,    407. 
v.  Cooper,  272. 
v.  Duffield,   197. 
v.  Eckert,   235,  283.  319,  419. 
v.  Elbervale  Coal  Co.,  412. 
v.  Ferguson,  121,  130,   131. 
v.  Freedley,  204,  205,  215,  217, 

218,    241,    249,    258,    304, 

306,   376,   399,  418. 
v.  Galbraith,  130. 
Hackett  v.,  133,  335,  339. 
v.  Herman,  31,  33,  43,  61-94, 

95,  100,  111. 
v.  Kerchner,     135,     142,     212. 

317,  378,  379. 
v.  Kuhn,  329,  331. 
v.  Maury,  42. 
Miller  v.,    17,   31,   44,    45,   67. 

94,  100,  104,  111,  112,  152, 

155. 
v.  Nancrede,     121,    123,     130. 

131. 
v.  Powell,   123,  131. 
Reish  v.,  329,  333,  334,  337. 
v.  Schumacher,  50-133,  339. 
v.  Sharpless,   50-133,   339. 
v.  Smith,  44,  55,   65,   67,   135, 

149,    177,    179,    191,    235, 

283,    318,    319.    343,    364, 

369,  372,  378,  412,  419. 
v.  Standard  Oil  Co.,  173,  424. 
Stinger  v.,  212,  214,  216,  217, 

258,  259,    262,    335,    347, 
354. 

Strode  v.,  7,  31,  33,  43,  51,  60, 
199,    200,    201,    219,    258, 

259,  354. 
v.  Stump,  130. 

Tharp  v.,  121,  123,  130. 

v.  Toms,  362. 

v.  Williams,  133,  306,  339. 


TABLE    OP    CASES. 


545 


[References  are  to  Pages.] 


Comm.  v.  Pullen,   32,  43,  46,  55, 

61. 
Congregation  Kal  Israel  v.  City 

of  N.  Y.,  78,  107. 
Conklin,  In  re,  127,  129. 
Conwell's   Est.,   In   re,    329,   330, 

334. 
Cook's  Est.,  In  re,  371. 
Cooper  v.  Com.,  272,  317,  407. 
v.  Cooper,   153. 
v.  Trewby,  377,  405. 
Cooper's   Est.,   57,   210,   218,   219, 

223,  226,  234,  235,  239,  241,  242, 

262,  301,  304,  317,  318,  319,  320, 

321,  322,  323,  324,  325,  407,  412, 

418,  428. 
Coming's  Est.,  In  re,  34,  149,  150, 

168,  174. 
Cowley,  Earl  of,  223,  370,  380. 
Coxe's  App.,  214,  329,  369. 
Crane  v.  Mayor,  398. 
Croinpton's  Est.,  In  re,  267. 
Crosby,  Est.,  In  re,  338. 
Cullom's  Est.,   In  re,  31,  34,   38, 

41,  43,  62,  84,  116,  119. 
Cullen  v.  Atty.-Gen.,  92,  93,  133, 

334,  336. 
Cullen's  Est.,  In  re,  75,  219,  223, 

236,  237,  260,  318,  325,  362,  363, 

374,  377,  390,  406,  407. 
Cumming's  Est.,  In  re,  379. 
Cunningham's    Est,    In    re,    249, 

277,  278.  354,  415,  416,  417. 
Curry  v.  Spencer,  32,  34,  46,  50. 
Curtis'  Est.,  In  re,  3,  45,  94,  97, 

102,  103,  154,  228,  245,  246,  248, 

252,  255,  256,  268,  275,  277,  278, 

283,  284,  285,  292,  297,  298,  299, 

303,  310,  313,  343,  355,  371. 
Custance  v.   Bradshaw,  149,  153, 

162. 

D 

Da  Costa,  In  re,  84,  99. 
Dallinger  v.  Rapello,  58,  149. 
law  inher— 35 


Dalrymple,   State   v.,   31,  45,   47, 

65,  135,  146,  148,  149,  159,  160, 

107,  168,  170,  173,  175,  179,  187, 

191,  195. 
Daly  v.  Sanders,  410. 
Davenport's  App.,  329,  331. 
David,  In  re,  338. 
Davidson  v.  N.  O.,  50. 
Davis  v.  Crandall,  398. 
Del  Busto,  Est.,  In  re,  15,  16,  44, 

171,  173,  175,  177,  190,  198,  199, 

233,  235,  317,  318,  423. 
Devlin,  Est,  In  re,  113. 
Dewey,  Est.,  In  re,  97,  105,  143, 
152,  336,  371. 
v.  Supervisors,  202,  403. 
Dobermiller,     In   re,    22,   37,    52, 

422. 
Doty's  Est,  In  re,  231,  344. 
Dowdney  v.  The  Mayor,  405. 
Drake  v.  Atty.-Gen.,  340. 
Drayton's  App.,  44,  152,  157,  197, 

371. 
Dreyer,  In  re,  215,  263. 
Dreyfous,  In  re,  308,  420,  421. 
DuBois'  App.,  329,  331. 
Duckworth,  In  re,   168.   171,  173, 

182. 
Dugdale  v.  Meadows,  377,  405. 
Dunlap  v.  Gallitin  Co.,  57,  387. 
Dunwell  v.  Bidwell,  424. 


E 


Eastern  Bank  v.  Com.,  412. 

Eaton's  Est,  In  re,  358. 

Edwards'  Est,  In  re.  338,  339. 

Ely  v.  Holton,  121,  420,  421. 

Ennis  v.  Smith,  56. 

Ensinau  v.  Directors  of  Poor,  326. 

Enston's  Will,  In  re.  45.  50,  65, 
75,  104,  149,  160,  163,  166,  167, 
168,  171,  173,  174,  175,  176,  177, 
180,  190,  191,  193,  198,  199,  200, 
202,  219,  360,  370,  372,  407. 


546 


TABLE    OF    CASES. 


[References  are  to  Pages.] 


Estates  of,  see  "In  re." 
Evans,  In  re,  142,  317,  378. 
Ewing,  In  re,  55,  56,  65,  149,  161, 

174,  179. 
Ex  parte  Franklin,  92. 

Sitwell,  144,  275,  384. 
Eyre  v.  Jacob,  17,  30,  31,  32,  34,  4Z, 

45,  46,  50,  51,  65,  149,  389,  424. 

F 

Fagely's    Est      See    "Appeal    of 

Com.,  In  re." 
Falls,  In  re,  402. 
Farley,    In   re,    92,   93,    133,    211, 

336,  356,  369,  372,  376,  395,  397. 
Farquharson  v.  Nugent,  382. 
layer  weather's  Est.,  In  re,  74,  75, 

99,  116,  118,  415. 
Fenn,  In  re,  122,  130. 
Ferrer,  In  re,  245,  258,  278,  401, 

402,  415. 
Fisher  v.  Brierly,  326,  379. 
Fisk  v.  Atty.-Gen.,  326. 
Flanagan  v.  Flanagan,  286. 
Fleming,  In  re,  246,  285,  287,  288, 

304. 
Floyd,  In  re,  212,  213,  217,  419. 
Flynn's  Est.,  In  re,  81,  137,  140. 
Folmer's  App.,  114. 
Folsom  v.  U.  S.,  418. 
Forbes,  Atty.-Gen.  v.,  161. 

v.  Steven,   149,  153,  160,  162. 
Forbes'  Est.,  In  re,  265,  270,  372, 

379,  381,  382. 
Foreign    Bond    Tax    Cases,    170. 

173,  174,  175,  177. 
Forrester,  In  re,  74,  101,  102,  103, 

108. 
Forsyth,  In  re,  80,  82,  154. 
Fosselman's  App.,  259,  263. 
Foster  v.  Ley,  347,  373,  379,  382, 
392. 
v.  Winfield,  154. 
Fox  v.  Com.,  17,  74,  75,  121,  423, 

424. 
Foy,  In  re,  119,  154. 


Franklin,  Ex  parte,  92. 
Frank's  Est.,  In  re,  393. 
Frazer  v.   People,   211,  354,  359, 

360,  369,  396,  397,  402. 
Fredarickson  v.  Louisiana,  58. 
Frowe,  In  re,  354. 
Fryer  v.  Morehouse,  330. 


G 


Galbraith  v.  Com.,  130. 
Gardner's  Est.,  In  re,  122,  125. 
Garman's  Est,  In  re,  336. 
Genet  v.  Hunt,  337. 
Gibbons'  Est,  In  re,  347. 
Gilman's  Est.,  In  re,  355,  391. 
Gilmore's   Est,    In   re,   121,    130, 

131. 
Gilpin's  Est.,  In  re,  113. 
Goldgart  v.  Peo.,  173. 
Goldstein's  Est.,  In  re,  210,  226, 

227,  233,  258,  403,  423. 
Gomez,  In  re,  307,  313. 
Gooch  v.  Ass'n,  109. 
Gorman  v.   State,  24,  25,  37,  40, 

47,   70. 
Gould's  Est.,  In  re,  201,  220,  221, 

222,  343,  368. 
Graham  v.  Bank,  195. 
Green  v.  Croft,  9. 

v.  Van  Buskirk,  169,  195. 
Greville  v.   Greville,  382,  392. 
Griffen  v.  Shephard,  280. 
Griffiths,  In  re,  92. 
Grover's  Est.,  In  re,  283,  285. 
Gurr  v.  Scudds,  75. 

H 

Hackett  v.  Com.,  133,  335,  339. 
Hales  v.  Freeman,  373,  382,  392. 
Hale's  Est,  In  re,  44,  45,  67,  75, 

156. 
Hall's  Est.,  In  re,  40.  81,  134,  135, 

137,  140,  202,  229,  317,  386,  387, 

403,  404,  416. 


TABLE    OF    CASES. 


547 


[References  are  to  Pages.] 


Halsey,  In  re,  414. 
Hamilton  v.   Dallas,   158,  166. 
Hamilton  Co.  v.  Mass.,  61,  62. 
Hamilton's   Est,    In    re,    63,    84, 

119,  256. 
Harrison  v.  Willis,  47. 
Hathaway  v.  Fish,  369.  374,  377, 

378,  380. 
Hauenstein  v.  Lynham,  58. 
Haven's  Est.,  In  re,  93,  201,  222, 

368. 
Haynes  v.  Sherman,  287. 
Healey  v.  Reed,  118. 
Heine  v.  Comm.,  405. 
Helman  v.  U.  S.,  424. 
Hendricks,    In  re,   121,   213,  331, 

337,  418,  422. 
Herman,  Com.  v.,  95. 
Herr's  Will,  In  re,  95,  96,  97,  102, 

103,  104,  112. 
Hervey    v.     Locomotive    Works, 

169,  195. 
Higgins,  Est.,  In  re,  228,  245,  246, 

269,  282,  284,  301,  303,  329,  330. 
Hilton  v.  Fonda,  67,  147. 
Hoare  v.  Osborne,  112. 
Hochster's    Est,    In    re,   97,    102, 

103,  107,  399. 
Hoffman's  Est.,  In  re,  32,  34,  38, 

40,  42,  80,  81,  82,  83,  134,  135, 

137,  139,  140,  191,  212,  228,  229, 

230,  245,  246,  248,  252,  255,  268, 

277,  278,  279,  282,  283,  285,  288, 

296,  303,  310,  313,  317,  343,  362, 

378,  387,  402. 
Hoghtaling's  Est,  In  re,  415. 
Holbrook's  Est.,  In  re,  135,  369, 

378. 
Holland  v.  Alcock,  113. 
Home   for   Friendless   v.    Rouse, 

94. 
Hood's  Est.,  44,  152,  157,  158,  177, 

197,  198,  199,  371. 
Hope,  Atty.  Gen.  v.,  160,  171. 

In  re,  201,  222,  368,  416. 
Hopkins,  In  re,  134,  228,  245,  246, 

247,  266,  269,  271,  285,  287,  301, 

804. 


Horter's  Est.,  In  re,  135,  378,  379. 
Howard,  In  re,  32,  42,  44,  45,  60, 

61,  67,  134,  155,  202,  386,  403. 
Howe,  In  re,  18,  40,  80,  82,  121, 

134,  135,  136,  137,  191,  229,  364, 

369,  378,  392,  419,  420,  421. 
Howell's  Est.,  142,  143,  317,  378. 
Hoyt  v.  Comm.,  169,  170,  171,  175, 

180,  195,  196. 
Hughes,   In  re,  80,  122,  158,  421, 

423. 
Hulse,  In  re,  231,  347. 
Hunter,  In  re,  97,  102,  113. 
Hunter  v.  Husted,  369,  378,  382. 
Hunt's  Est.,  In  re,  120,  123,  127, 

132,  383. 
Hurst  v.  Cemetery  Ass'n,  113. 
Hyde,  In  re,  343. 


Inhabitants   of  Town   of   Essex 

v.  Brooks.     (See  Addenda.) 
In  re  Acker,  416. 

Alexander's  Est.,  55,  65,  160, 

173,  177,  179. 
Arnett,  121,  356,  357,  358,  359, 

376,  395,    397,    400,    420, 
422,    423. 

Astor,  201,  209,  211,  212,  213, 
214,  215,  218,  258,  263, 
354,    355,    356,    360,    368, 

377,  386,    394,    395,    396, 
398,    399,    400,    401,    406. 

Bacon's     Est,    171,    173,    177, 

199. 
Badart,  159,  164,  165. 
Balleis'  Est.,  116,  117,  118. 
Bank's  Est.,  390,  411,  412,  413, 

415,  423. 
Bartlett,  346. 
Benet's     Est.,    213,   246,     288, 

299,  303. 
Benjamin,  228,  246,  247,  255, 

285,  288. 
Biddle's  Est,  336. 


548 


TABLE    OF    CASES. 


[References  are  to  Pages.] 


In  re  Bird's  Est.,  122,  142,  211,  217, 
218,  227,  229,  261,  262, 
369,  423. 

Birkett,  112. 

Bisphana's  Est.,  266,  267,  379. 

Bittiuger's  Est.,  15,  30,  44,  57, 
65,  67,  143,  146,  149,  150, 
152,  167,  192,  194,  232, 
317,    371,    377,    399. 

Black's  Est,  113. 

Bondon,  58,  59,  168,  171,  172, 
182. 

Boyd's  Est.,  363,  372,  381,  382, 
394,  410. 

Bradshaw,  351. 

Brewer's  Est.,  243,  246,  247, 
248,  262,  286,  299,  326, 
329,  363,  376,  377,  399, 
411,    412,    417. 

Brewster,  243,  299. 

Brook's  Est.,  80,  82,  121,  307, 
312,  340,  422. 

Bruce,  161,  246,  248,  285,  287, 
301,  303,  304. 

Budd's  Est.,  265,  271,  272,  320. 

Butler,  122,  124,  127,  130,  271, 
407,  408. 

Cager's  Will,  40,  82,  121,  134, 
135,  136,  142,  191,  225, 
228,  229,  243,  245,  247, 
248,  255,  265,  276,  285, 
287,  299,  304,  326,  378, 
379,   420,    422. 

Calm,  211. 

Capdevielle,  158,  166. 

Capron,  123,  124,  129. 

Carver's  Est.,  41,  59,  60. 

Chardavoyne,  80,  134,  420. 

Chittenden,  94,  96,  97,  99,  101, 
107. 

Christian's  Est,  265,  266,  270. 

Cigala,  146,  149,  164,  166,  174, 
175,  371. 

Clark's  Est.,  66,  134,  159,  160, 
168,  175,  181,  191,  227, 
228,    246,    247,    248,    250, 


255,    256,    266,    268,    271, 
285,    299,    301,    303,    304, 
305,  360,  391. 
In  re  Clyrner's  Est.,  133. 

Coale's  Est.,  149,  162. 

Cockey's  Est.,  214,  256,  258, 
271,  356,  359,  360,  391, 
397,  401. 

Cogswell,  245,  246,  282,  285, 
307,  418. 

Coleman's  Est.,  50,  150,  152, 
154,  157,  173,  174,  177, 
178,  190,  194,  195,  324. 

Colhoun,  219,   221,  416,  417. 

Conklin's  Est.,  127,  129. 

Conwell's  Est.,  329,  330,  334. 

Cook's   Est.,   371. 

Cooper's  Est,  57,210,  218,219, 
223,  220,  234,  235,  239, 
241,  242,  262,  270,  272, 
301,  304,  317,  318,  319, 
320,  321,  322,  323,  324, 
325,  407,  412,  418. 

Coming's  Est.,  34,  149,  150, 
168,  174. 

Cowley,  Earl,  223,  370,  380. 

Crompton,  267. 

Crosby,  338. 

Cullen's  Est,  75,  219,  223, 
236,  237,  260,  318,  325, 
362,  363,  374,  377,  390, 
107. 

Cullom,  31,  34,  38,  41,  43,  62, 
84,  116,  119. 

Cumming's  Est,  379,  415,  416, 
417. 

Cunningham,  249,  277,  278, 
354. 

Curtis,  3,  45,  94,  97,  102,  103, 
154,  228,  245,  246,  248, 
252,  255,  256,  268,  275, 
277,  278,  283,  284,  285, 
292,  296,  297,  298,  299, 
303,  310,  313,  343,  355, 
371. 

Da  Costa,  84,  99. 


TABLE    OF    CASES. 


649 


[References  are  to  Pages.] 


In  re  David,  S38. 

Del   Busto's   Est.,   15,   16,   44, 

171,    173,    175,    177,    190, 

108,    100,   1233,    235,    317, 

318,  412,  423. 
Devlin's  Est,  113. 
Dewey's    Est.,    97,    105,    143, 

152,  336,  371. 
Dobermiller,  22,  37,  52,  422. 
Doty's  Est.,  231,  344. 
Dreyer,  215,  263. 
Dreyfous,  308,  420,  421. 
Duckworth,  168,  171,  173,  182. 
Eaton's  Est.,  358. 
Edward's  Est,  338,  339. 
Enston's  Will,  45,  50,  65,  75, 

104,    149,    160,    163,    166, 

167,    168,    171,    173,    174, 

175,    176,    177,    180,    100, 

191,    193,    198,    199,    200, 

202,    219,    360,    370,    372, 

407. 
Evans,  142,  317,  378. 
Ewing,    55,    56,    65,   149,    161, 

174,  179. 
Fagely's    Est.,    210,    235,   259, 

262,    301,    318,    324,    363, 

376,    399,    412,    413,    415, 

417,  423. 
Falls,  402. 
Farley,  92,   93,   ±33,  211,  336, 

356,    369,    372,    376,    395, 

397. 
Fayerweather,  74,  75,  99.  116, 

118,  415. 
Fenn,  122,  130. 
Ferrer,  245,  258,  278,  401,  402, 

415. 
Fleming,    246,    285,    287,    288, 

304. 
Floyd,  212,  213,  217,  419. 
Flynn's  Est.,  81,  137,  140. 
Forbes'    Est.,    265,    270,    372, 

379,  381,  382. 
Forrester,    74,    101,    102,    103, 

108. 
Forsyth,  80,  82,  314. 


In  re  Fox,  119,  154. 
Frank's  Est.,  393. 
Frowe,  354. 
Gardner,  122,  125. 
Garman's  Est.  336. 
Gibbons'  Est.,  347. 
Gilman's  Est.,  355,  391. 
Gilmore's  Est.,  121,  130,  131. 
Gilpin's  Est.,  113. 
Goldstein's     Est.,     210,     226, 

227,  233,  258,  403,  423. 
Gomez,   307,   313. 

Gould,  201,  220,  221,  222,  343, 

368. 
Griffiths,  92. 
Grover's  Est,  283,  285. 
Hale's  Est.,  44,  45,  67,  75,  156. 
Hall's   Est,   40,   81,   134,   135, 

137,    140,    202,    229,    317, 

386,    387,    403,    404,  416. 
Halsey,  414. 
Hamilton's   Est.,   63,   84,   119, 

256. 
Haven's    Est.,    93,    201,    222, 

368. 
Hendricks,  121,  213,  331,  337, 

418,  422. 
Herr's   Will,   95,  96,   97,   102, 

103,   104,   112. 
Higgins,    228,    245,    246,    269, 

282,    284,    301,    303,    329, 

330. 
Hochster,    97,    102,    103,    107, 

399. 
Hoffman's  Est.,  32,  34,  38,  40, 

42,  SO,  81,  82,  83,  134,  135, 

137,    139,    140,    191,    212, 

228,  229,  230,  245,  246, 
248,  252,  255,  268,  277, 
27S.  279,  282,  283,  285, 
288.  296,  303,  310,  313, 
317.  343,  362,  378,  387, 
402. 

Hoghtaling,  415. 
Holbrook's  Est.,  135,  369,  378. 
Hood's  Est,  44,  152,  157,  158, 
177,   197,    198,   199,   37L 


550 


TABLE    OF    CASES. 


[References  are  to  Pages.] 


In  re  Hope,  201,  222,  368,  416. 

Hopkins,    134,    228,    245,    246, 

247,    266,    269,    271,    285, 

287,  301,  304. 
Horter's  Est,  135,  378,  379. 
Howard,  32,  42,  44,  45,  60,  61, 

67,  134,  155,  202,  386,  403. 
Howe,  18,  40,  80,  82,  121,  134, 

135,    136,    137,     191,    224, 

364,    369,    378,    392,    419, 

420,   421. 
Howell's    Est,   142,    143,   317, 

378. 
Huey's  Est.,  335. 
Hughes,  80,  122,  158,  421,  423. 
Hulse,  231,  347. 
Hunter,  97,  102,  113. 
Hunt's  Est,  120,  123,  127,  132, 

383. 
Hyde,  343. 
James,    19,    50,   66,    116,   146, 

147,    148,    160,    163,    166, 

167,    168,    169,    173,    174, 

175,    182,    184,    191,    194, 

282,   325,  370,  372. 
Jenkinson,  208. 
Johnson,    227,    250,    255,    265, 

266,    270,    271,    302,    328, 

329,  337,  342. 
Jones'  Est.,  113,  132,  135,  209, 

211,    212,    213,    218,    263, 

356,    359,    362,    369,    389, 

391,  394. 
Kaas'  Est.,  210.  212,  213,  219, 

226,  227,  233. 
Kavanagh's  Est.,  106. 
Keech's  Est.,  94,  97,  98,  101, 

102,    103,    104,    107,    109, 

356,    382,    403. 
Keenan,    217,    258,    262,    263, 

354,    362,    377,    394,    400, 

406,   410,   411,    417. 
Keith's  Est.,  95,  103,  106,  354, 

362. 
Kemeys,  80,  121,  122,  355,  419, 

420,  421,  422,  423. 


In  re  Kene,  219,  381. 

Kennedy's  Est.,  97,  106,  130. 

Kerr's  Est.,  385. 

King's     Est.,     142,    343,    364, 

372,   379,  412,  419. 
Kingston's  Est.,  144. 
Kissam,  422. 
Knoedler.   Est.,   41,   114,   208, 

214,  260,  263. 
Langham,  377,  405. 
Leavitt,    218,    227,    246,    247, 

248,    255,    266,    270,    271, 

287,   299,  302. 
Lederer,  217. 
Le  Fever,  228,  245,  246,   269, 

282,    285,    286,    288,    301, 

303,  304,  392. 
Lenox's   Est,    79,    94,   96,    97, 

98,    100,     102,     105,     107, 

109,    112,    369,    376,    399. 
Lewis,  256,  258,  401. 
Line's  Est.,  149,  150,  151,  222, 

224,    235,    239,    323,    324, 

329,  331,  332,  337. 
Livingston,  343. 
Loekwood,  380. 
Lord,  285. 
Lovelace,    159,   163,    164,   199, 

337. 
Ludlow's    Est,    59,    60,    137, 

201,    220,    221,    230,   231, 

368. 
McCarthy,    360,    361,    402. 
McCormick's  Est,  335. 
McCoskey,  115. 
McCready,  134. 
McGarvey,  132. 
McGeary's  Est.,  237,  239,  241, 

242,    246,    259,    320,    321, 

325. 
McGowan's     Est,     211,     213, 

214,  229,  263,  354. 
McKean's  Est.,  204,  205,  216, 

217,  411,  412,  413,  415. 
McLean,  203. 
McMahon,  202. 


TABLE    OF    CASES. 


551 


[References  are  to  Pages.] 


In  re  McPherson,  7,  14,  30,  31,  42, 
44,  45,  51,  .".2,  53,  71,  101, 
104,  167,  182,  186,  192, 
214,  216,  256,  258,  203, 
276,  349,  354,  355,  356, 
359,  369,  373,  376,  377, 
386,  391,  392,  394,  398, 
400,  401,  402. 

Mann,  383. 

Maris'  Est,  332,  390,  413. 

Martin's  Est,  409,  411. 

Matthews'  Est.,  213,  246,  256, 
288,  299,  303. 

Merriam's  Est,  31,  34,  38,41, 
43,    62,    63,    64,    84,    116, 

119,  149,  150,  180. 
Meyers,  201,  222,  231,  343,  307. 
Micklewait,  329,  330. 
Miller,   95,    97,    102,   104,    112, 

120,  121,  130,  132,  134, 
142,  217,  258,  266,  307, 
343,  355,  359,  400,  401, 
418,   420,   421,    422. 

Millward's  Est,  137,  201,  220, 
221,    222,    228,    247,    254, 

269,    285,    287,    295,    290, 

368. 
Milne,  416. 
Minturn,  84,  94,  97,  106,  107, 

300,    303,    374,    375,    391, 

402,  423. 
Mixter's    Est.,    142,    143,    317, 

378. 
Morejon,  168,  171,  173,  182. 
Morris'  Est.,  209. 
Moulton,  123,  120. 
Murphy's    Est.,    93,   135,   337, 

309,  378. 
Murray,  209,  362. 
Neale's  Est,  102. 
New   York   Lake  Erie   R.   R. 

Co.,  386,  395. 
Nieman's   Est.,   235,  242,   246, 

247,    248,    265,    283,    285, 

299,  304,  320. 
North  Canal  St  Road,  424. 


In  re  Noyes,  78.  98,  107,  115. 
O'Sullivan,  212. 
Packard's  App.,  121. 
Palmer's  Est.,  374. 
Parker,  92,  106. 
Park's  Est.,  350,  351,  352,  404. 
Pearsall,  356,  401. 
Peck's  Est.,  141,  211,  229,  255, 

266,  271,  301,  369. 
Pelton's  Est.,  355,  391. 
Pepper's  Est.,  384. 
Perkins,  365. 
Phelp's  Est,  402. 
Philbrick's  Trust,  380. 
Phipps,  06,  148,  150,  100,  168, 

169,    171,    173,    175,    180, 

182,    183,    187,    191,    194, 

195.  197,  370. 
Pinckney,  217,  218,  221. 
Piatt's  Est,  412,  415. 
Pond,  142,  211,  229,  360. 
Prime,    84,    93,    94,    100,    107, 

110,  117,  118,  421,  423. 
Prout,  355,  356,  391,  401,  411, 

413,  414. 
Province's   Estate.     (See  Ad- 
denda.) 
Purroy,  249,  411,  415,  417. 
Quinn,  97,  101,  344. 
Raymond,  45,  154,  231,  392. 
Reilly's  Est.,  231,  344,  367. 
Redroth's  Will,  326. 
Richards,  93,  115. 
Richardson,  308,  346,  367,  421. 
Riddle's  Est.,  329,  331,  337. 
Robertson.   134,  212,  224,  244, 

276,   303. 
Rogers,  344. 
Romaine,  32,  66,  146,  147, 148, 

160,    163,    166,    167,    168, 

169,    171,    173,    174,    175, 

176,    179,    181,    182,    184, 

186,    191,    192,    195,    196, 

370,  372. 
Roosevelt,  228,  246,  24S,  252, 

255,    268,    278,    279,    284, 


552 


TABLE    OF    CASES. 


[References  are  to  Pages.] 


285,    288,    290,    296,    298, 
303,    310,    313,    338,    343, 
414. 
In  re  Rowsell,  115. 

Rubicams  Est.,  219,  407. 

Russak,  219,  221. 

Russell's  Est.,  218,  259. 

Ryan,  12,  121,  422. 

Sammon,  373,  382,  390,  392. 

Sauter,  257. 

Seaman,  32,  38,  80,  228,  248, 
254,  275,  280,  282,  285, 
288,  304,  307,  308,  309, 
352,  addenda. 

Secor's  Est,  45,   154. 

Shaw,  422. 

Sherwell's  Est.,  30,  32,  34,  37, 
41,  42,  43,  45,  48,  68,  69, 
80,  134,  135,  142,  192,  229, 
230,  379. 

Short's  Est,  32,  33,  55,  65, 
135,  146,  149,  177,  179, 
198,  199,  418. 

Sidell,  201,  222,  231,  343,  366, 
367. 

Skidmore,  257. 

Skillinan's  Est.,  81,  82,  378. 

Sloane,  416. 

Small's  Est.,  16,  34,  41,  64,  65, 
145,  146,  147,  152,  154, 
157,  167,  174,  176,  179, 
190,     194,     196,    385,   413. 

Smith's  Est.,  16,  116,  118, 132, 
134,  147,  204,  205,  215, 
256,  259,  260,  261,  350, 
354,  358,  376,  377,  398, 
399. 

Smith's  Will,  164. 

Somerville,  211,  212. 

Spencer,  122,  124,  125,  127, 
129,  130,  422. 

Spies,  266,  267. 

Stacey,  174. 

Stanford,    216,    245,    249,    250. 

Stanton's  Est,   149,   150,   151. 

Sterling's  Est.,  81,  135,  140, 
229,  378,  421. 


In  re  Stewart,  75,  215,  217,  228,  246, 
247,  248,  250,  255,  256, 
260,  277,  278,  285,  287, 
303,  304,  305,  306,  312, 
341,   413,   415,  417,   419. 

Stewart  (Bell's  App.),  408. 

Stiger,  74,  143,  155,  217. 

Stiles'  Est,  245. 

Stilwell's  Est,  120,  127,  129, 
275. 

Strong,  50,  149,  150,  151,  166, 
187. 

Stucke,  360,  402. 

Surrogate  Cayuga  Co.,  285. 

Swann's   Est.,   Ill,   399. 

Sweetland's  Est.,  125,  129. 

Swift,  31,  34,  38,  41,  42,  44, 
45,  59,  62,  65,  66,  67,  93, 
135,  143,  147,  149,  150, 
151,  152,  154,  187,  190, 
191,  201,  212,  216,  220, 
266,  267,  342,  368,  370, 
371,  379,  380. 

Taylor's  Est.,  81,  116,  118, 
137,   140,  143. 

Thomas,  34,  122,  124,  129, 
150,  168,  180,  187,  191, 
197,  422,  423. 

Thompson,  80,  107,  121,  134, 
135,  270,  422. 

Thomson's  Est.,  97,  265,  266, 
270,    329,    331,    369,    378. 

Thorne,  122,  423. 

Tobias,  280,  284,  307,  310,  312, 
314,  340. 

Tootals  Trust,  158,  166,  197, 
199. 

Tuigg's  Est.,  41,  59,  61,  66, 
107,  115,  116,  343,  347. 

Tulane,  163,  171,  177,  180, 
190,  191,  193,  195,  199, 
370. 

Ullmann,  204,  205,  214,  350, 
351,  352,   355,   395. 

Underbill,  80,  344.  356,  367, 
382. 

Van  Bueren,  266,  267,  380. 


TAIILE    OF    CASKS. 


553 


[References  are  to  Pages.] 


In  re  Vanderbilt,  7,  60,  78,  79,  84, 
97,  98,  99,  101,  105,  106, 
107,  109,  112,  115,  141, 
213,  214,  258,  262,  263, 
355,  356,  358,  359,  363, 
369,  375,  377,  382,  391, 
392,  395,  396,  397,  398, 
399,  406,  417. 

Van  Kleeck,  60,  84,  94,  95,  07, 
106,  112,  423. 

Van  Rensselaer,  245,  282,  303. 

Vassar,  75,  78,  84,  93,  94, 
96,  97,  98,  99,  100,  104, 
105,  107,  108,  112,  201, 
217,  221,  222,  227,  266, 
281,    283,    368,    387,  413. 

Vinot's  Est.,  66,  113,  160,  168, 
175,  181,  191,  195,  245, 
2S2. 

Vogel's  Est.,  114. 

Wagner's  Est,  357,  359,  397. 

Wallace,  213,  246,  248,  250, 
256,  285,  287,  304.  305. 

Waller's  Est.,  94. 

Wallop's  Trust,  159,  163,  164, 
199,  250. 

Walsh,  392,  393. 

Walter's  Est.,  112. 

Wayne's  Est,  123,  130,  423. 

Weaver's  Est.,  16,  150,  151, 
180,  187,  194,  197. 

Weed's  Est.,  189,  366,  383. 

Westeott's  Est.,  296. 

Wharton's  Est.,  130,  226,  265, 
270,  271,  272,  273,  301, 
320,  327,  412. 

Wheeler's  Est.,  45,  125,  127, 
129,  137,  154,  155,  210, 
246,  252,  254,  285,  296, 
366. 

Wilkes'  Est,  263. 

Wilkins'  Est..  303. 

Wilkinson's  Est,  92,  373.378, 
390,  392. 

Williamson's  Est.,  44,  45,  67, 
153,  155,  206,  219,  242, 
266,  324,  347,  419. 


In  re  Willing's  Est.,  235,  239,  241, 
265,  269,  271,  272,  301, 
318,  320,  321,  409. 

Wolfe's  Est.,  18,  44,  143,  152, 
201,  205,  211,  214,  215, 
256,  260,  308,  350,  354, 
355,  356,  358,  359,  386, 
395,  396,  401. 

Woolsey,  131,  132. 

Wright,  270,  344,  346. 


Jackson,  Atty.  Gen.  v.,  161. 

v.  Davenport,    305,    312,    340, 
341. 
James'   App.,    235,  236,   237,   260, 

318,  319,  320,  325,  374,  377,  390, 

407,  412,  419. 
James,  In  re,  19,  50,  66,  116,  146, 

147,  148,  160,  163,  166,  167,  168, 

169,  171,  173,  174,  175,  182,  184, 

191,  194,  282,  325,  370,  372,  374, 

377,  419. 
Jaudon  v.  Hayes,  283. 
Jenkinson,  In  re,  208. 
Johnson,  In  re,  227,  250,  255,  265, 

266,  270,  271,  302,  328,  329,  337, 

342. 
Jones'  Est,  In  re,  113,  132,  135, 

209,  211,  212,  213,  218,  263,  356, 

359,  362,  369,  389,  391,  394. 


K 


Kaas'  Est,  In  re,  210,  212,  213, 

219,  226,   227,  233. 
Kavanagh,  In  re,  106. 
Keech,  In  re,  94,  97,  98,  101,  102, 

103,  104,  107,  109,  356,  382,  403. 
Keenan's    Est.,   In   re,   217,    258, 

262,  263,  354,  362,  377,  394,  400, 

406,  410,  411,  417. 
Keith  and  Dailey,  In  re,  95,  103, 

106,  354,  362. 
Keith's  Est,  95,  103,  106. 


554 


TABLE    OF    CASES. 


[References  are  to  Pages.] 


Kemey's  Est,  In  re,  80,  121,  122, 

355,  419,  420,  421,  422,  423. 
Kene,  In  re,  219,  381. 
Kennedy's   Est.,    In  re,   97,    106, 

130. 
Kentucky  R.  R.  Tax  Cases,  52. 
Kerchner,  Com.  v.,  135,  142,  212, 

317,  378,  379. 
Kerr's  Est.,  In  re,  385. 
Kilderbee  v.  Ambrose,  394. 
King's    Est.,    142,    343,    364,    372, 

379,  412,  419. 
Kingston's  Est.,   In  re,  144. 
Kintzing   v.   Hutchinson,   44,    67, 

148,  152,  173,  174,  175,  176,  177, 

179,  193,  316,  370,  371. 
Kirkland   v.    Hotchkiss,   30,   172, 

173. 
Kissam,  In  re,  422. 
Kissam  v.  People,  121. 
Knoedler's    Est,   In   re,   41,   114, 

208,  214,  260,  263. 
Knox  v.  Baldwin,  423. 
Kortright  v.  Blunt,  410. 
Kuhn,  Com.  v.,  329,  331. 


Langiham,   In  re,  377,  405. 
Large  v.  McClain,  382,  394,  410. 
Lathers  v.  Keogh,  405. 
Latless  v.  Holmes,  419. 
Latrobe  v.  Baltimore,  173. 
Lawrence  v.   Kitteredge,   57. 
Leavitt,  In  re,  218,  227,  246,  247, 

248,  255,  266,  270,  271,  287,  299, 

302. 
Lederer,  In  re,  217. 
Le  Fever,  In  re,  228,  245,  246, 

269,  282,  285,  286,  288,  301,  303, 

304,  392. 
Lenox,  In  re,  79,  94,  96,  97,  98, 

100,  102,  105,  107,  109,  112,  309, 

376,  399. 
Lewis,  In  re,  256,  258,  401. 
Lewis  v.  Woodford,  169,  195. 


Line's  Est.,  In  re,  149,  150,  151, 

222,  224,  235,  239,  323,  324,  329, 

331,  332,  337. 
Livingstone,  In  re,  343. 

v.  Murray,  287. 
Lockwood  v.  Carr,  398. 

In  re,  380. 
Lord,  In  re,  285. 
Lord    Adv.  v.  McDonald,  273. 
Lord  Adv.,  Macfarlane  v.,  381. 
Lorillard  v.  Peo.,  143,  152. 
Louisiana  v.  Peydras,   134. 
Louisville  v.  Gaines,  74. 
Lovelace,  In  re,  159,  163,  164, 199, 

337. 
Ludlow's  Est.,  In  re,  59,  60,  137, 

201,  220,  221,  230,  231,  368. 
Lyall  v.  Lyall,  160,  164,  165. 

M 

McCarthy,  In  re,  360,  361,  402. 

McCormick's  Est,  335. 

McCoskey,  In  re,  115. 

McCready,  In  re,  134. 

McCulloch   v.    Maryland,    30,    60. 

McDonald,  Lord  Adv.  v.,  273. 
v.  Mass.  Hosp.,  109. 

McDowell  v.  Addoms,  133. 

Macfarlane  v.  Lord  Adv.,  381. 

McGaryey,  In  re,  132. 

McGeary's  Est.,  In  re,  237,  239, 
241,  242,  246,  259,  320,  321,  325. 

McGowan's  Est.,  In  re,  211,  213, 
214,   229,  263,  354. 

McKean's  Est,  In  re,  204,  205, 
216,  217,  411,  412,  413.  415. 

McKeen  v.   Northampton,  149. 

McLean,  In  re,  203. 
v.  Brown,  397. 

McMahon,  In  re,  202. 

McPherson,  In  re,  7, 14,  30,  31,  42, 
44.  45,  51,  52,  53,  71,  101,  104, 
167,  182,  186,  192.  214,  216,  256, 
258,  263,  276.  349,  354,  355,  356, 
359,  369,  373,  376,  377,  3S6,  391, 
392,  394,  398,  400,  401,  402. 


TABLE    OF    CASES. 


555 


[References  are  to  Pages.] 


McVean  v.  Sheldon,  352. 

Mager  v.  Grirna,  31,  33,  35,  58,  61, 
64,  149. 

Mann,  In  re,  383. 

Maris'  Est.,  In  re,  332,  390,  413. 

Martin's  Est.,  In  re,  409,  411. 

Mason  v.  Sergeant,  231,  274,  310, 
410,  424. 

Matthews,  In  re,  213,  246,  256, 
288,  299,  303. 

May  v.  Slack,  424. 

Mayor  v.  Baltimore,  168,  194. 

Mellon's  App.,  219,  233,  235,  236, 
237,  240,  241,  242,  246,  260,  272, 
301,  304,  318,  319,  320,  321,  323, 
325,  326,  377,  407,  409,  411,  412, 
413. 

Merkle  v.  Hennepin  Co.,  37,  389, 
404. 

Merriam's  Est.,  In  re,  31,  34,  38, 
41,  43,  62,  63,  64,  84,  116,  119, 
149,    150,    186. 

Meyer's  Est,  201,  222,  231,  243, 
367. 

Michigan  Cent.  R.  R.  v.  Col- 
lector, 173. 

Micklewait,  In  re,  329,  330. 

Miller,  In  re,  95,  97,  102,  104,  112, 
120,  121,  130,  132,  134,  142,  217, 
258,  266,  307,  343,  355,  359,  400, 

401,  418,  420,   421,  422. 
Miller  v.  Com.,  17,  31,  44,  45,  67, 

94,  100,  104,  111,  112,  152, 
155. 
v.  Peo.,  143. 
Millward's  Est.,   In  re,  137,  201, 
220,  221,  222,  228,  247,  254,  269, 
285,  287,  295,  296,  368. 
Milne,  In  re,  416. 
Minot    v.    Winthrop,    22,    32,    34, 
35,  40,  43,  44,  46,  69,  88,  116,  118, 
141,  226,   267,  273,  327. 
Minturn's  Est.,  In  re,  84,  94,  97. 
106,  107,  360,  363,  374,  375,  391, 

402,  423. 

Mixter's  Est.,  142,  143,  317,  378. 
Montague    v.    State,    45,    54,    55, 
362,  369,  377,  382,  387,  389,  391. 


Morejon,  In  re,  168,  171,  173,  182. 
Morris'  Est.,  In  re,  269. 
Moulton's  Est.,  In  re,  123,  126. 
Moye  v.  May,  169. 
Murphy's  Est,  93,  135,  337,  369, 

378. 
Murray,  In  re.,  209,  362. 


N 


Nancrede,  Com.  v.,  121,  123,  130, 

131. 
Nash  v.  Bank,  423, 
Neale's  Est.,  In  re,  102. 
Newell  v.  Newell,  269,  284. 
New   Orleans   v.    Stewart's   Est., 

134. 
New    York   Inf.   Asyl.   v.    Super- 
visors, 102. 
New   York   Lake   E.   R.    R.    Co., 

In  re,  386,  395. 
New  York,  L.  E.  R.  R.  v.  Penn., 

175. 
Nieman's    Est,    In   re,    235,   242, 

246,  247,  248,  265,  283,  285,  299, 

304,  326. 
Northampton    Co.     v.    Lafeyette 

Col.,  100,  105,  109,  111. 
North    Canal    St.    Road,    In    re, 

424. 
Northern  Ind.  R.  R.  v.  Connelly, 

48. 
Noyes'  Est,  In  re,  78,  98,  107,  115. 


O 


O'Connor  v.  McMahon,  228,  269, 
284. 

Oldfield  v.  Preston,  208. 

Orcutt's  App.,  55,  149,  151,  166, 
171,  173,  174,  175,  176,  190,  191, 
194,  197,  199,  219,  333,  407. 

Osgood  v.  Maguire,  174,  175. 

Ostell's  Case,   202. 

O'Sullivan's    Est,   212. 

Owings  v.  State,  366,  392. 


556 


TABLE    OF    CASES. 


[References  are  to  Pages.] 


Packard's  App.,  121,  123. 

Page  v.  Rives,  144,  275,  384,  393. 

Palmer's  Est.,   In  re,  374. 

Panter's  Case,  419. 

Parker,   In  re,  92,  106. 

Talk's  Est.,  In  re,  350,  351,  352, 

404. 
Parsons  v.  Lyman,  187. 
Pearsall's  Est.,  356,  401. 
Peck,   In   re,   141,   211,   229,    255, 

266,  271,  301,  369. 
Pelton's  Est.,  In  re,  355,  391. 
Pepper's  Est.,  In  re,  384. 
People  v.  Barber,  94,  107,  218. 

v.  Barker,  148,  175,  198,  204. 

v.  Board  Sup'rs,  99. 

v.  Cassity,  99. 

v.  Coleman,  50,  97,  115,  116, 
148,  170,  175,  195,  198. 

v.  Colllson,    74. 

v.  Com'rs  of  Taxes,  55,  83,  94, 
95,  102,  103,  112,  148,  149, 
183,  186,  309. 

v.  Davenport,  74. 

v.  Fire  Ass'n,  115. 

v.  Gardner,   148,    175. 

v.  Gilon,  214. 

v.  Hicks,  204. 

v.  Home  Ins.  Co.,  62. 

v.  Long  Island  City,  74. 

v.  McLean,   115. 

v.  Mayor  of  Brooklyn,  51,  53. 

v.  Purdy,  99,  110. 

v.  Roper,  74. 

v.  Smith,  148. 

v.  Supervisors,  67,  99,  147, 
423. 

v.  Tax   Com'rs,   60,    183,   186. 

V.  Wemple,  62,  403. 
Perkins'  Est.,  365. 
Peters  v.  Lynchburg,  32,  46,  72. 
Petroleum  Co.  v.  Lacey,  103. 
Phelps'  Est,  402. 
Phila.  v.  Woman's  Ch.  Ass'n,  71, 
85,  100,  105,  109,  110,  111. 


Phila.  v.  Penn.  Hospital,  71,  86, 
100,  110,  111. 

Philbrick's  Trust,  380. 

Phipps'  Est.,  In  re,  66,  148,  150, 
160,  168,  169,  171,  173,  175,  180, 
182,  183,  187,  191,  194,  195,  197, 
370. 

Physick's   Est.,    130. 

Pinckney,  In  re,  217,  218,  221. 

Piatt  v.  Routh,  340,  342. 

Piatt's  Est.,  412,  415. 

Pollock  v.  Farmers'  L.  &  T.  Co., 
15,  25,  41. 

Pond,  In  re,  142,  211,  229,  360. 

Powell,  Com.  v.,  123,  131. 

Power  v.  Cassidy,  113,  154. 

Prevost  v.  Greneaux,  58. 

Prichard  v.  Thompson,  113. 

Prime's  Est.,  In  re,  84,  93,  94, 
100,  107,  116,  117,  118,  421,  423. 

Prout,  In  re,  355,  356,  391,  401, 
411,  413,  414. 

Province's  Estate.  (See  Adden- 
da.) 

Pullen  v.  Coram.,  32,  43,  46,  55,  61. 

Pullman  Pal.  Car  Co.  v.  Penn., 
30,  147,  160,  194,  195,  196. 

Purroy,  In  re,  249,  411,  415,  417. 


Q 

Quessart's   Heirs  v.   Canongie,   7, 

58,  424. 
Quinn,  In  re,  97,  101,  344. 


R 


Railroad  Co.  v.  Collector,  173. 

v.  Penn.,  30. 

v.  Richmond,   52. 
Raymond,  In  re,  45,  154,  231,  392. 
Reek's  App.,  326. 
Redroth's  Will,  326. 
Reg.  v.  Comm.,  202. 
Reilly's  Est.,  In  re,  231,  344,  367. 
Reisch  v.  Com.,  329,  333,  334,  337. 


TABLE    OF    CASES. 


557 


[References  are  to  Pages.] 


Rhymers'  App.,  113. 
Richards,  In  re,  93,  115. 
Richardson,  In  re,  308,  346,  367, 

421. 
Riddle's  Est.,  329,  331,  337. 
Ring  v.  Jarman,  315. 
Robertson's   Est,    134,   212,    224, 

244,  276,  363. 
Rogers,  In  re,  344. 
Romaine,  In  re,  32,  66,  146,  147, 

148,  160,  163,  166,  167,  168.  169, 

171,  173,  174,  175,  176,  179,  181. 

182,  184,  186,  191,  192,  195,  196, 

370,  372. 
Roman  Cath.  Ch.  v.  Niles,  55,  83. 

95,  307,  309. 
Roosevelt,    In    re,    228,    246,   248, 

252,  255,  268,  278,  279,  284,  285, 

288,  290,  296,  298,  303,  310,  313, 

338,    343,    414. 
Roosevelt  Hosp.  v.  Mayor,  74. 
Rose  v.  Hatch,  2S6. 
Rowsell,  In  re,  115. 
Rubicam's  Est.,  219,  407. 
Russak,  In  re,  219,  221. 
Russell's  Est.,  218,  259. 
Ryan,  In  re,  12,  121,  422. 

s 

St.   Louis   v.    Wiggins,    175. 

Sammon,  In  re,  121,  373,  382,  390, 
392. 

Sanders  v.   Downs,   204. 

San  Francisco  v.  Mackey,  158, 
173,  175. 

Sauter,  In  re,  257. 

Scholey  v.  Rew,  14,  31,  36,  43,  393. 

Schoolfield  v.  Lynchburg,  32,  46, 
72. 

Seaman,  In  re,  32,  38,  80,  228, 
248,  254,  275,  280,  282,  285,  288, 
304,  307,  308,  309,  352.  (See  Ad- 
denda.) 

Secor's  Est,  In  re,  45,  154. 

Seibert's  App.,  113,  329,  331,  333, 
337,  374,  377,  382,  389,  390. 


Seminary  v.  Cramer,  105,  109. 

Shaw,  In  re,  422. 

Sherrill  v.  Christ  Church,  45,  60, 

61,   84,   93,   94,  95,  97,  98,   106, 

107,  157,  307,  423. 
Sherwell's  Est.,  In  re,  30,  32,  34, 

37,  41,  42,  43,  45,  48,  68,  69,  80, 

134,  135,  142,  192,  229,  230,  379. 
Shippen    v.    Burd,    135,   369,   378, 

380. 
Short's  Est.,  In  re,  32,  33,  55,  65, 

135,  146,  149,  177,  179,  198,  199, 
418. 

Sidell,   In  re,  201,  222,   231,   343, 

366,  367. 
Skidmore,  In  re,  257. 
Skillman's  Est.,  81,  82,  378. 
Skottowe  v.  Young,  131. 
Sloane,  In  re,  416. 
Small's  Est,  In  re,  16,  34,  41,  64, 

65,  145,  146,  147,  150,  151,   152, 

134,  157,  167,  174,  176,  179,  190, 

194,  195,   385,  413. 
Smith  v.  Van  Nostrand,  286. 
Smith's  Est,  In  re,  116,  118,  132, 

134,  147,  204,  205,  215,  256,  259, 

260,  261,  350,  354,  358,  376,  377, 

398,  399. 
Smith's  Will,  164. 
Society  for  Savings  v.  Coit,  61. 
Sohier  v.  Eldridge,  369,  374,  377, 

378,  380,  3S8,  393,  410. 
Somerville,  In  re,  211,  212. 
Spencer,  In  re,  122,  124,  125,  127, 

129,  130,  422. 
Spies,  In  re,  266,  267. 
Sprankle  v.   Com.,  272,  411,  412. 
Stacey,  In  re,  174. 
Standard  Oil   Co.,    Com.   v.,   173, 

424. 
Stanford,  In  re,  216,  245,  249,  250. 
Stanton's  Est.,  149,  150,  151. 
State  v.  Alston.     (See  Addenda.) 
v.  Brevard,  149,  16S,  197,  371, 

372. 
v.  Brim,  16S,  197,  198. 
v.  County  of  St.  Louis,  175. 


558 


TABLE    OF    CASES. 


[References  are  to  Pages.] 


State  v.  Dalrymple,  31,  45,  47,  65, 
135,  146,  148,  149,  159, 
160,  167,  168,  170,  173, 
175,  179,  187,  191,  195. 

v.  Dorsey,   17,  343. 

V.  Ferris,   23,   32,    35,    36,   37, 

41,  42,  47,  49,  54,  68,  70, 
77,  89,  389. 

V.  Gorman,  24,  25,  37,  40,  47, 

70. 
v.  Hamlin,  22,  32,  34,  36,  41, 

42,  43,  44,  46,  47,   51,  52, 
53,  54,  69,  87,  140. 

v.  Hancock,  22,  52. 
v.  Mann,  25,  35,  47. 
Montague  v.,  45,  54,  55,  362, 
369,    377,    382,  387,    389, 
391. 
Tyson   v.,  31,   45,  46,   47,   64, 
149,  226,  232,  259,  260. 
Stelz  v.  Schreck,  228,  269,  284. 
Stephen  v.   Com.,  363. 
Sterling's  Est.,  81,  135,  140,  229, 

378,  421. 
Stewart,  In  re,  75,  215,  217,  228, 
246,    247,    248,    250,    255, 
256,    260,    277,    278,    285, 
287,    303,    304,    305,    306, 
312,    341,    413,    415,    417, 
419. 
v.  Green,  113. 
Stewart's     Est,     In     re     (Bell's 

App.),  408. 
Stiger,  In  re,  74,  143,  155,  217. 
Stiles,  In  re,  245. 
Stilwell,  Ex  parte,  144,  384. 
Stilwell's   Est.,    In   re,    120,    127, 

129,  275. 
Stinger   v.    Com.,    212,    214,   216, 
217,  258,  259,  262,  335,  347,  354. 
Stokes  v.  Ducroz,  149. 
Strode  v.  Com.,  7,  31,  33,  43,  51, 
60,  199,  200,  201,  219,  258,  259, 
354. 
Strong,   In  re,  50,   149,   150,   151, 

166,  187. 
Stuart  v.  Palmer,  214. 


Stucke,  In  re,  360,  402. 
Stump,  Com.  v.,  130. 
Sturgis  v.  U.  S.,  424. 
Succession  of  Amat,  58. 
Crassius,  58. 
Dufour,  58. 
Dupuy,  376,  388,  389,  392,  398, 

410. 
Oyon,  133,  418. 
Peyroud,   133,  392,  418. 
Schaffer,  58. 
Surrogate  Cayuga  Co.,  In  re,  285. 
Swann's  Est,  In  re,  111,  399. 
Sweetland's  Est,  125,  129. 
Swift,  In  re,  31,  34,  38,  41,  42,  44, 
45,  59,   62,  65,   66,   67,  93,    135, 
143,  147,  149,  150,  151,  152,  154, 
187,  190,  191,  201,  212,  216,  220, 
266,  267,  342,  368,  370,  371,  379, 
380. 


T 


Talmadge  v.  Seaman,  32,  38,  80, 

82,  228,  245,  248,  254,  275,  277, 

279,  280,  282,  283,  284,  285,  288, 

293,  303,  307,  309,  352. 
Taylor's  Est.,  In  re,  81,  116,  118, 

137,  140,  143. 
Templeton  Grove  v.  Cramer,  109, 

110. 
Terry  v.  Wiggins,  286. 
Tharp  v.  Com.,  121,  123,  130. 
Thomas,  In  re,  34,  122,  124,  129, 

150,  168,  180,  187,  191,  197,  422, 

423. 
Thomas  v.  Wolford,  287. 
Thompson,  In  re,  80,  97,  107,  121, 

134,  135,  270,  272,  329,  422. 
Thompson  v.  Adv.  Gen.,  146,  159, 
161,  169,  171,  195. 
v.  Brown.  336. 
v.  Hill,  283. 
Thomson's  Est.,  97,  265,  266,  270, 

329,  331,  369,  378. 
Thorley  v.  Massam,  266. 
Thorn  v.  Gamer,  141. 


TABLE    OF    CASES. 


559 


[References  are  to  Pages.] 


Thorne,  In  re,  122,  423. 

Tobias,  In  re,  280,  284,  307,  310, 

312,  314,  340. 
Tompkins   v.    Little   Rock  R.   R. 

Co.,  405. 
Tootal's   Trust,    In   re,    158,    16G, 

197,  199. 
Torrey  v.  Willard,  362,  377,  387, 

389,   391. 
Townsend  v.  Frommer,  343. 
Tratt  v.  Crotzer,  329,  330. 
Tucker  v.  Ferguson,  74. 
Tuigg's  Est,  In  re,  41,  59,  61,  66, 

107,  115,  116,  343,  347. 
Tulane,  In  re,  163,  171,  177,  180, 

190,  191,  193,  195,  199,  370. 
Turner  v.  Martin,  347,  3S2. 
Tyson  v.  State,  31,  45,  46,  47,  64, 

149,  226,  232,  259,  260. 
Tyson's  App.,  347. 


u 


Udney  v.  Udney,  158,  166. 
Ullman,  In  re,  204,  205,  214,  350, 

351,  352,  355,  395. 
Underhill,  In  re,  80,  344,  356,  367, 

382. 
Union  Trust  Co.  Case,  218. 
U.  S.  v.  Allen,  373,  388,  410. 

v.  Banks,  329,  334. 

v.  Brice,   231,   274,  424. 

v.  Erie  Ry.  Co.,  173. 

v.  Hart,  329,  334. 

v.  Hazard,  231,  274,  410,  424. 

v.  Hillegas,  119. 

v.  Hunnewell,    65,    149,    158, 
171. 

v.  Ins.  Co.,  266,  424. 

v.  Kelley,  424. 

v.  Leverich,  331,  337. 

v.  Maurice.  63. 

v.  Morris,  158,  171. 

v.  Penn.    Co.,    359,    373,    386, 
388,  396,  410. 

v.  Rankin,  195,  424. 

v.  Tappan,  374,  377,  3S8. 


U.  S.  v.  Townsend,  424. 

v.  Trucks,  349,  373,  377,  386, 

387,  388,  395,  410. 
v.  Watts,  75,  144,   393. 
v.  Wigglesworth,  75. 
U.  S.  Trust  Co.  v.  Mayor,  387. 
Utica  Cotton  Co.  v.  Supervisors, 
99. 


Van  Brocklin  v.  Tenn.,  119. 
Van  Bueren,  In  re,  266,  267,  380. 
Vanderbilt's  Est.,  In  re,  7,  60,  78, 
79,  84,  97,  98,  99,  101,  105,  106, 

107,  109,  112,  115,  141,  213,  214, 
258,  262,  263,  355,  356,  358,  359, 
363,  369,  375,  377,  382,  391,  392, 
395,  396,  397,  398,  399,  406,  417. 

Van    Derventer    v.    Long    Island 

City,  203. 
Van  Horn  v.  Campbell,  286. 
Van  Kleeck,  In  re,  60,  84,  94,  95, 

97,  106,  112,  423. 
Van  Rensselaer,  In  re,  245,  282, 

303. 
Van  Riper  v.  Happenheimer,  22, 

37,  52,  132. 
Vassar,  In  re,  75,  78,  84,  93,  94, 

96,  97,  98,  99,  100,  104,  105,  107, 

108,  112,  201,  217,  221,  222,  227, 
266,  281.  283,  368,  387,  413. 

Vinot,  In  re,  66,  113,  160,  168,  175, 

181,  191,  195,  245,  282. 
Vogeis,  In  re,  114. 

W 

Wager  v.  Wager,  287. 
Waginer,  In  re,  357,  359,  397. 
Wagner  Inst.  v.  Phila.,  100,  111. 
Wallace    v.    Atty.-Gen.,    66,    159, 

160,    161,    162,    164,    167, 

171,  191,  199,  200. 
v.  Myers,   32,   37.  42.    52,    58, 

59,  61,  71,  216. 
In  re.  213.  246,  248.  250,  256. 

2S5,  287,  304,  305. 


560 


TABLE    OF    CASES. 


[References  are  to  Pages.] 


Waller,  Est.,  94. 

Wallops'   Trust,   In  re,  159,   163, 

164,  199,  250. 
Walsh,  In  re,  392,  393. 
Walter's  Est.,  112. 
Ward  v.  Richardson,  382. 
Warrimer  v.  People,  121. 
Waterer  v.  Waterer,  153. 
Watkins  v.  Reynolds,  343. 
Waugh's  App.,  329. 
Wayne,  In  re,  123,  130,  423. 
Weaver's  Est.,  16,  150,  151,  180, 

187,  194,  197. 
Weed,  In  re,  189,  366,  383. 
Westcott's  Est.,  296. 
Weston    v.    Goodrich,    204,    205, 

349,  350,  352,  386,  394,  395. 
Wharton's   Est,   In  re,   130,  226, 

265,  270,  271,  272,  273,  301,  320, 

327,  412. 
Wheeler,  In  re,  45,  125,  127,  129, 

137,  154,  155,  210,  246,  252,  254, 

285,  296,  366. 
White  v.  Howard,  154. 
Wilcox  v.  Smith,  10,  274. 
Wilhelmi  v.  Wade,  393,  410. 
Wilkes,  In  re,  263. 
Wilkins,  Est.,  303. 
Wilkinson,  In  re,  92,  373,  378,  3yo, 

392. 


Williams  v.  Board  of  Supervisors, 

180. 
Williams'  Case,  8,  32,  72,  224. 
Williams,  Com.  v.,  133. 
Williamson  v.  Naylor,  347,  407. 
Williamson's  Est.,   In  re,  44,  45, 

67,  153,  155,  206,  219,  242,  266, 

324,  347,  419. 
Willings,  In  re,  235,  239,  241,  265, 

269,  271,  272,  301,  318,  320,  321, 

409. 
Wilson  v.  Gaines,  74. 

v.  O'Leary,  268. 
Wisconsin  v.  Ins.  Co.,  411. 
Witman  v.  Lex,  326. 
Wolfe,  In  re,  18,  44,  143,  152,  204, 

205,  211,  214,  215,  256,  258,  260, 

308,  350,  354,  355,  356,  358,  35U, 

386,  395,  396,  398,  401. 
Woolsey,  In  re,  131,  132. 
Wright,  In  re,  270,  344.  346. 
Wright's  App.,  329,  331,  369,  374. 
Wright  v.  Blakeslee,  231,  274,275, 

316,  410,  413. 
Wurts  v.  Hoagland,  52. 


Young  Men's  Ch.  Ass'n  v.  Mayor, 
78,  112. 


INDEX. 

[REFERENCES  are  to  pages.] 


A 

ACADEMIES, 

exemption  of,  78. 

ACCELERATION, 

between  remainder-man  and  life  tenant,  275. 

ACCOUNTING, 

when  district  attorney  proper  party  upon,  397. 
not  entitled  to  collect  tax  on,  397. 

when  executor  protected  upon,  for  taxes  paid  for  infant,  382. 
see  "Remedy  and   Practice." 

ACTION  OF  DEBT, 

see  "Debt";    "Remedy  and  Practice." 

ACTIONS, 

see  "Remedy  and  Practice." 
ACTS, 

constitutional  objections  to  title  of,  51,  57. 

exemptions  to  be  by  general  or  special,  75,  94. 
see  "Statutes." 

ACTS  OP  CONGRESS, 

succession  under  defined,  274. 
succession  and  legacy  taxes  under,  14,  144. 
under  income  tax  act  of  1894,  14. 
exemptions  under,  144. 

no  personal  liability  of  executor  under  succession  tax,  388. 
when  executor  personally  liable  under  legacy  act,  388. 
lien  of  tax,  how  enforced  under,  3S8,  389. 
legacies  from  personal  property,  when  exempt,  144. 
Inference  from  taxing  legacies  from  real  estate,  144. 
law  inher, — 36  (561) 


562  INDEX. 

[References  are  to  Pages.] 

ACTS  OF  CONGRESS— Continued, 

compromise  moneys,  when  not  legacies  under,  144. 

tax  imposed  where  life  tenant  and  remainder-man  accelerated 

succession,  275. 
money  from  French  spoliation  claims  not  legacies  under,  144. 
second  duties,  when  not  chargeable,  144. 
laws  taxing  remainders,  274,  275. 
appraisement  under,  231. 
conflicting  decisions  under  acts  of,  424  (note), 
repeal  of,  14,  424. 

effect  of  saving  clause  of  repealing  act,  14  (note),  424. 
see  "Exemptions." 

ADMINISTRATION, 

state  power  to  tax  estate  during  period  of,  56,  57. 
right  to  tax  when  there  is  a  new,  160. 

effect  upon  state  of  neglect  to  administer  upon  estate,  409. 
expenses  of,  when  tax  cannot  be  paid  by  executor  as  part  of,  379, 
380". 

ADMINISTRATOR, 

duties  of,  in  Pennsylvania,  372  (note). 

not  appointed  where  he  has  hindered  collection  of  tax  by  removing 

property  from  state,  363. 
rules  as  to  payment  of  tax  by,  in  Pennsylvania,  370,  371. 
when  not  to  pay  tax  upon  real  estate  out  of  personalty,  372. 
may  sell  property  to  pay  tax,  364,  365. 
where  intestate  estate  pays  tax  before  distribution,  372. 
to  give  bond  to  pay  tax,  363. 
cannot  deliver  legacy  until  tax  collected,  364. 
when  not  liable  for  tax  on  foreign  real  estate,  371. 
entitled  to  notice  of  appraisement,  369. 
may  procure  appointment  of  appraiser,  369. 
proceeding  of,  to  have  property  assessed,  397. 
effect  of  decree  made  in  proceedings  by,  399. 
appeal  of,  from  appraiser's  report,  403. 
liability  of  heirs  to,  where  tax  paid,  373. 
liability  of,  as  to  legatees,  etc.,  373,  377. 
liability  of,  in  action  at  law  by  county  treasurer,  391. 
liable  for  tax  until  paid,  363. 
personal  liability  of,  374. 


INDEX.  563 

[References  are  to  Pages.] 

ADMINISTRATOR— Continued, 

personal  liability  of,  in  Pennsylvania,  374. 
personal  liability  of,  under  New  York  statute,  374. 
liability  of,  under  acts  of  congress,  373. 
liability  under  English  statutes,  373. 
when  personally  liable  for  costs,  374,  375. 
when  chargeable  with  penalty,  374. 
when  relieved  from  penalty,  411,  412. 

contempt  or  attachment  proceedings  against,  etc.,  355,  391. 
foreign,  liability  of,  for  tax,  371. 

foreign,  when  liable  for  stock  transferred,  370  (note  109),  371. 
see  "Executors." 

ADOPTED    CHILDREN, 

when  word  "children"  does  not  include,  120. 

effect  of  statutes  giving  right  to  inherit,  123. 

exemption  of,  in  New  York,  Connecticut,  and  other  states,  82, 

120,  121,  122,  421,  422. 
taxable  at  1  per  cent,  under  New  York  Act  1892,  122. 
under  New  York  acts  prior  to  1892,  121,  122,  421,  422,  423. 

in  California,  87. 

Maine,  87. 

Massachusetts,  88. 

Ohio,  89. 
effect  of  amendatory  statute  upon  decree  taxing,  122,  421. 
children  of,  when  not  exempt,  122  (note),  423  (note), 
lineal  descendants  of,  when  exempted,  120. 
when  parent  by  nature  as  heir  of,  exempt,  123. 
method  of  adoption  in  New  York,  122. 
adoption  under  laws  of  other  states,  when  sufficient,  122. 

see  "Illegitimate  Children";   "Mutually  Acknowledged  Rela- 
tion." 

ADOPTION, 

method  of,  in  New  York,  122. 

ADVANCEMENTS, 

when  loans  by  decedent  to  his  sons  are  legacies,  346. 

AGENTS, 

of  state,  executors,  administrators,  etc.,  deemed  in  Pennsylvania, 
374. 


564  INDEX. 

[References  are  to  Pages.] 

ALIENS, 

power  of  state  to  tax  property  of,  58,  133,  146. 
when  treaty  violated  by  taxing,  58. 
when  not  taxable  under  legacy  act  in  England,  159. 
taxation  of,  under  succession  duty  act,  159. 

when  estopped  from  setting  up  defense  that  devise  to  ia  void,  393. 
see  "Foreigners" ;  "Nonresident  Decedents." 

ALMSHOUSE, 

defined,  and  claiming  exemptions,  92,  97,  98,  99,  101,  104,  107. 
when  liable  to  legacy  tax,  103. 

institution  exacting  fee  when  an  almshouse,  108  et  seq. 
ruling  of  court  in  Vassar  Case  criticised,  109. 
see  "Exemptions." 

AMENDATORY  STATUTES, 
how  construed,  80  (note),  420. 
when  they  take  effect,  420. 

effect  of,  upon  adopted  children  for  taxes  due,  120,  121,  421,  422. 
when  not  retroactive,  upon  taxes  due,  420. 
see  "Remedy  and  Practice";  "Statutes." 

AMERICAN  STATUTES, 

enumeration  of,  13  et  seq.,  77  et  seq. 
policy  of,  15. 

exemptions  under,  compared  with  English  acts,  15,  77. 
see  "Statutes." 

ANCESTOR, 

of  husband  or  wife,  exemption  of,  86. 

ANIMALS, 

societies  to  protect,  exemption  of,  83,  92. 

ANNUITEES, 

are  estates,  under  inheritance  tax  law,  266. 

legacies  payable  out  of  income  are,  266. 

granted  to  trustees  to  carry  on  business  taxable,  266. 

liability  of,  not  affected  by  payment  out  of  principal  fund,  266. 

when  contingent,  no  tax  payable  by  exempt  life  tenant  upon,  266, 
268. 

contingent,  when  tax  payable  until  life  tenant's  death  or  re- 
mainders vest  in  possession,  in  New  York,  268,  291. 

when  tax  upon,  payable  in  Massachusetts,  267. 


INDEX.  5U5 

[References  are  to  Pages.] 

ANNUITIES— Continued, 

when  legacy  not  an  annuity,  tax  upon,  207. 

when  annuity  to  daughter's  husband  for  their  children  not  tax- 
able in  Pennsylvania,  269. 
how  tax  upon  must  be  met  out  of  income,  267. 
no  concern  of  state  how  tax  upon  is  paid,  267,  3S0. 
appraisement  in  New  York,  215. 

appraisement  and  taxation  of,  when  contingent,  228,  266,  290,  291. 
duty  of  appraiser  as  to,  227. 
where  legatee  relieved  by  will  from  tax  on,  executor  liable,  379. 

ANNUITY  TABLE,  539. 

ANTICIPATION, 

of  payment  by  remainder-man,  rule  as  to,  238,  242  (note),  271,  272. 

APPEAL, 

from  appraiser's  reports  in  New  York  and  Illinois,  256,  257. 
rules  regulating,  in  New  York,  257  (note),  365  (note), 
grounds  of,  must  be  alleged,  257. 
when  disallowed  from  appraiser's  report,  257. 
where  none  taken  tax  becomes  conclusive,  258. 
from  assessment,  security  on,  402. 

none  allowed  in  Pennsylvania  unless  error  shown,  258  (note), 
when  payment  of  tax  no  bar  to,  on  part  of  state,  259. 
of  heir  when  tax  on  real  estate,  403. 
when  administrator  has  right  of,  403. 
findings  of  fact  on,  in  New  York,  402  (note), 
when  question  of  restitution  not  considered  on,  404. 
who  to  be  made  parties  upon,  404. 
when  right  of,  begins  to  run,  259. 
value  of  policies  cannot  be  raised  on,  259. 

power  of  United  States  supreme  court  to  review  state  court  by, 
402  (note), 
see  "Remedy  and  Practice." 

APPOINTMENT, 

see  "Power  of  Appointment";    "Power  of  Disposition." 

APPRAISEMENT, 

under  general  tax  laws  defined.  203. 

assessments  and  assessors,  and  rules  regulating,  203  et  seq. 

how  statute  must  be  complied  with  in  making,  204. 


566  INDEX. 

[References  are  to  Pages.] 

APPRAISEMENT— Continued, 

county  treasurer  may  apply  for,  391. 

county  treasurer  or  comptroller  in  New  York  entitled  to  notice  of, 

204  (note), 
duty  of  executor  to  apply  for,  210. 

how  made  under  inheritance  tax  laws,  203  et  seq.,  209  et  seq. 
when  jurisdiction  of  surrogate  is  exclusive,  205,  206,  352,  353. 
supreme  court  may  grant  reappraisement  on  application  of  state 

comptroller,  207,  215,  259,  353. 
not  confined  to  property  taxable  under  general  laws,  208. 
all  property  must  be  considered,  208. 
may  include  policies  of  insurance,  114,  208  (note),  259. 
forms  relating  to,  in  New  York,  Appendix,  532. 
of  land  and  personal  securities  under  these  acts,  209,  210,  216,  217. 
only  taxable  property  subject  to,  211,  213. 
object  of,  to  ascertain  value,  212. 
when  property  has  no  actual  or  potential  value,  217. 
conclusive  only  as  to  value,  217. 
When  asset  must  be  appraised  at  par,  218. 
When  market  value  does  not  warrant,  218. 
certificate  of  superintendent  insurance,  effect  of  in  New  York,  225, 

280,  281. 
when  debts  and  liabilities  to  be  deducted  from,  221,  222,  223. 
notice  of,  and  hearing  upon,  214. 

effect  of,  upon  parties  not  notified  of,  214,  256,  258  (note),  375. 
by  executors  without  notifying  the  state  held  binding  under  Acts 

1885,  1887,  375,  376. 
fair  market  value  as  to,  216,  217. 
under  general  law  does  not  bind,  217. 
sale  in  partition  suit  does  not  fix  value,  217. 
order  for,  of  real  estate  must  describe  same,  217,  218. 
of  partnership  interests,  210  (note), 
of  life  estates,  annuities,  legacies,  and  terms  of  years  under  New 

York  statute,  224,  225. 
of  annuities  and  life  estates  in  Connecticut,  225. 
of  remainders  in  Massachusetts,  226. 
life  estates,  annuities,  or  remainders  in  Maryland,  226. 
under  the  Pennsylvania  statute,  226,  232. 
of  estate  to  husband  and  wife  as  tenants  by  entirety,  227. 


INDEX.  507 

[References  are  to  Pages.] 

APPRAISEMENT— Continued, 

of  estate  to  decedent's  widow  for  life,  or  until  she  marries  again, 
228. 

of  legacies  and  estates  of  $500  under  Act  N.  Y.  1887,  229. 
of  estates  of  $250  in  Pennsylvania,  rule  as  to,  142,  230. 

legacies  for  debts  and  services,  when  not  subject  to,  230,  23L 

of  future  and  contingent  estates  under  acts  of  congress,  231. 

of  such  estates  in  Maryland  and  Connecticut,  231. 

of  such  estates  in  Pennsylvania,  231,  233. 

under  earlier  statutes  prior  to  1850,  233,  234,  235. 

under  acts  of  Pennsylvania  1850,  1855,  236,  237,  240. 
18S7,  238,  240. 

when  remainder  may  have  immediate,  238. 

when  appraisement  and  tax  postponed.  238. 

rules   where  remainder-man   anticipates   payment,   239,   240,   242 
(note). 

value  of  remainder,  how  ascertained,  240. 

where  widow  or  life  tenant  has  power  of  disposition,  228,  242,  243. 

method  of  assessing  tax  on  remainders  in  Pennsylvania,  241,  242 
(note). 

of  remainders,  contingent  or  future  estates,  in  New  York,  224  et 
seq.,  228,  243. 

provisions  of  act  of  1S92  as  to,  243  et  seq. 

not  appraisable  until  contingent  estate  vests  in  possession,  244. 

vested  remainders  appraisable  at  death,  245. 

contingent  estates,  when  appraisable  at  death,  245,  24S,  254. 

of  remainders,  where  trustee  or  life  tenant  has  power  of  disposi- 
tion, 246,  247,  249. 

contingent  estates  may  be  appraised  on  vesting  in  possession,  248, 
254. 

how  often  may  be  allowed,  260,  261. 

effect  upon,  of  fraud,  mistake,  concealment,  collusion,  or  omis- 
sion, 215,  258,  259,  260. 

second,   allowed    where    property    concealed,    withheld,    or   over- 
looked, 215,  258,  259,  260. 

second,  of  pictures,  when  allowed  for  common  mistake,  in  Eng- 
land, 262. 

allowed,  owing  to  mutual  mistake,  after  13  years,  262. 

not  allowed  of  increase,  where  property  once  assessed,  215,  260, 
261. 


568  INDEX. 

[References  are  to  Pages.] 

APPRAISEMENT— Continued, 
effect  of  appraisement,  256,  263. 

appeals,  when  allowed  therefrom  in  New  York  and  Illinois,  256, 
263. 

APPRAISERS, 

appointment,  powers,  and  duties  of,  209  et  seq.,  211,  212. 

duties  of,  defined  by  Ransom,  S.,  in  Re  Astor,  212,  214. 

not  to  report  exemptions,  213. 

appointed  by  supreme  court  on  application  of  state  comptroller, 

207. 
appointed  in  Pennsylvania  by  register  of  wills,  233. 
expert  appraisers  may  be  appointed  in  Pennsylvania,  210. 
when  they  act  judicially,  203. 

appointed  whenever  occasion  may  require,  215,  260. 
executor  to  procure  appointment  of,  210. 
when  surrogate  may  or  may  not  appoint,  211. 
when  surrogate  acts  as,  204. 
order  appointing,  contents  of,  213. 
when  application  for  denied,  247. 
appointed  in  New  York  on  application  of  county  treasurer,  etc., 

391. 
not  necessary  to  appoint,  where  legacies  in  cash,  211,  368  (note 

101). 
not  appointed  where  life  tenant  has  power  of  disposition,  247. 
must  notify  all  parties  interested,  214,  256. 
infants  to  be  notified  and  represented  by  special  guardians  in  New 

York,  256,  258  (note), 
proceedings  void  as  to  persons  not  notified  by,  214,  256. 
notice  to  be  given  by,  to  county  treasurer,  etc.,  in  New  York,  204 

(note),  214. 
when  decisions  of,  as  to  value,  not  reviewed,  204. 
to  fix  "fair  market  value,"  209,  218. 
real  estate  and  personal  property,  how  appraised,  209,  210,  217, 

218,  221. 
when  not  to  deduct  mortgage  upon  foreign  real  estate,  219. 
when  mortgage  debt  to  be  deducted  by,  220. 
power  of,  to  deduct  debts,  expenses,  or  executor's  commissions,  in 

New  York,  220,  221,  222,  368. 
recent  ruling  as  to  deductions,  368. 


INDEX.  569 

[References  are  to  Pages.] 

APPRAISERS— Continued, 

rule  in  Pennsylvania  as  to  deductions,  223. 

may  examine  and  construe  will,  214. 

when  second  appraisement  to  be  allowed,  215. 

duties  of,  as  to  life  estates  and  annuities,  224,  226. 

where  in  doubt  as  to  liability,  property  to  be  reported,  213. 

when  not  to  report  exemptions,  213. 

may  take  testimony  under  oath  in  New  York,  213. 

may  call  and  hear  witnesses,  213. 

same  power  in  Pennsylvania  and  Illinois,  213. 

may  examine  will  on  appraisement,  214. 

may  appraise  land  in  different  counties,  216,  217. 

not  bound  by  general  appraisal,  217. 

when  surrogate  not  bound  by  report  of,  215,  263. 

report  of,  when  not  final,  215,  263. 

reporting  residuary  estate,  216. 

when  state  may  appeal  from  report  of,  256,  257,  260. 

appeals  from  report  of,  in  New  York  and  Illinois,  256,  257. 

60  days'  time  allowed  to  appeal,  256,  257. 

rules  of  surrogate's  court  of  New  York  as  to  specifying  grounds 

of  appeal  from  report  of,  257  (note), 
when  order  confirming  report  of  conclusive  on  state,  261. 
confirmation  of  report,  when  not  postponed,  263. 
report,  failure  to  appeal  from,  effect  of,  258. 
report  of,  in  Pennsylvania,  to  show  prima  facie  error,  258  (note), 
mandamus  by,  against  county  treasurer,  to  compel  payment  of 

fees,  209. 
taking  fee  or  reward  a  misdemeanor  in  New  York,  209  (note). 

ART, 

works  of,  including  books,  coins,  when  exempt  in  England,  112. 

ASSESSMENT, 

see  "Appraisement";    'Appraiser.'* 

ASSESSOR, 

see  "Appraiser." 

ASSIGNMENT, 

inter  vivos,  when  taxable,  330. 
in  trust  to  defeat  tax,  330,  331. 

see  "Gifts  inter  Vivos  and  Causa  Mortis." 


570  INDEX. 

[References  are  to  Pages.] 

ASSOCIATIONS, 
see  "Exemptions." 

ASSUMPSIT, 

action  of,  by  state,  to  recover  tax,  389. 

ASYLUMS, 

see  "Exemptions." 

ATTACHMENT  OR  CONTEMPT  PROCEEDINGS, 
to  collect  tax,  355,  391. 

ATTORNEY  GENERAL, 

bill  in  equity  by,  to  collect  tax,  389. 

AUDITOR   GENERAL, 

in  Pennsylvania,  may  approve  appointment  of  expert  appraisers, 
210. 

AUGUSTUS,  EMPEROR, 

succession  tax  under,  7. 

AUSTRALIAN  COLONIES, 
succession  taxes  in,  2. 

AUSTRIA, 

succession  taxes  in,  2. 

AUTHORS, 

list  of  English,  on  succession  and  Inheritance  tax,  11. 
see,  also,  List  of  Authors,  xxi. 


BENEFICIARY  SOCIETY, 

when  payment  by,  to  deceased  member's  next  of  kin,  exempt,  113, 
114. 

BENEFIT  SOCIETIES, 
exemption  of,  92. 

BENEVOLENT  CORPORATIONS, 

exemptions  of,  84,  86-88,  96. 

BEQUEST, 
defined,  100. 

see  "Exemptions." 


INDEX.  571 

[References  are  to  Pages.] 

BIBLE  SOCIETIES, 

exemption  of,  83,  88. 
see  "Exemptions." 

BILL  IN  EQUITY, 

to  collect  tax,  when  maintainable,  389. 

BILL  IN  ORPHANS'  COURT, 
to  enforce  tax,  390. 

BOARDS  OF  FOREIGN  MISSIONS, 
when  not  exempt,  99,  100. 

BONA  FIDE  PURCHASERS, 

rights  of,  in  buying  real  estate,  394,  406. 
see  "Remedy  and  Practice." 

BOND, 

by  remainder-man,  to  postpone  payment  of  tax,  239,  248,  317,  320. 

when  remainder-man  need  not  file,  285. 

effect  of  failure  to  file,  under  Pennsylvania  statute,  239. 

BONDS, 

power  of  state  to  tax  nonresident  decedents  upon,  65. 

tax  upon  government  bonds  and  state  securities,  when  valid,  59 

et  seq. 
of  foreign  decedents,  when  exempt  in  Pennsylvania,  177  et  seq. 
of  foreign  corporations  of  nonresident  decedents  in  New  York, 

171  (note), 
doctrine  of  James  Case  es  to,  of  nonresidents,  183  et  seq. 
as  to  whether  bonds,  stocks,  etc.,  are  tangible  or  intangible  prop- 
erty, 173  (note  104). 
see  "Tangible  and  Intangible  Property." 

BONUS, 

legacy  tax  defined  as  an  assessment  or,  31. 

BOOKS  ON  ENGLISH  LEGACY  AND  SUCCESSION  DUTIES,  11. 

BOOKS, 

exemption  of,  and  statues,  coins,  etc,  112. 

BREWER,  JUSTICE, 

opinion  of  succession  taxes,  2  (note). 

BRITISH  COLUMBIA, 
history  of  tax  in,  27. 


572  INDEX. 

[References  are  to  Pages.] 

BRODIE,  PETER  B., 

on  succession  duties,  11. 

BROOKLYN, 

public  library  in,  exempt,  99. 

BROTHERS  AND  SISTERS, 

when  exempt  as  lineal  descendants  In  Pennsylvania,  133. 
see  "Exemptions." 

BUILDINGS, 

for  public  worship,  college,  schoolhouse,  exemption  of,  in  New 
York,  78. 

BURDEN, 

of  proof,  to  relieve  from  penalty  for  nonpayment  of  tax,  414. 

BURIAL  PLAGES, 

exemption  of,  in  Pennsylvania,  85  (note). 

BURIAL  PLOT, 

when  expenses  for,  exempt,  113. 

BUSINESS, 

when  institutions  not  doing,  exempt  as  almshouses,  102. 

BUSINESS  CORPORATIONS, 

when  not  exempt  in  New  York,  84. 

BUXTON,   SIDNEY, 

on  death  duties,  11  (note). 

0 

CALIFORNIA, 

statute  of,  appendix,  510. 
history  of  tax  in,  23. 
exemptions  under  statute  of,  87. 

CANADIAN  PROVINCES, 
succession  taxes  in,  2,  26. 

CARLISLE  TABLES, 

use  of,  in  Pennsylvania,  227. 

CASH  LEGACIES, 

when  appraiser  not  necessary  for,  211,  368  (note  101). 

CAUSA  MORTIS, 

gifts  by,  see  '"Gifts  inter  Vivos  and  Causa  Mortis.** 


INDEX.  573 

[References  are  to  Pages.] 

CEMETERIES, 

exemption  of,  92,  97,  101,  105,  113. 

CERTIFICATES  OF  STOCK  AND  BONDS, 
when  deemed  property,  173  (note  104). 

CESTUI  QUE  TRUST, 

funds  in  hands  of,  when  taxable,  330. 

CHARGE, 

when  institutions  making,  not  almshouses,  106,  107. 

CHARITABLE  AND  RELIGIOUS  CORPORATIONS  AND  OTH- 
ER OBJECTS, 
taxation  and  exemption  of,  92-115. 
England,  under  legacy  act,  92,  93. 
what  included  in  term,  92. 

when  not  "incorporated  companies"  in  New  York,  97,  98. 
general  policy  as  to  exemption  of,  7,  68. 
not  originally  exempted  from  tax,  75. 
exemption  of,  under  New  York  statutes,  78,  79. 
general  rule  in  New  York  as  to  liability  and  exemption  of,  74. 
general  statutes  of  New  York  exempting,  77  et  seq. 
exemption  of,  by  Act  1890,  83. 

from  inheritance  tax  in  New  York,  by  Act  1892,  83. 

as  almshouses,  97. 

in  Pennsylvania,  Virginia,  and  North  Carolina,  100. 
when  conveyance  to,  not  gift,  bequest,  or  endowment,  100. 
statute  relieving  from  tax,  when  not  retroactive,  423. 

see  "Exemptions." 

CHARITABLE  PURPOSE, 

defined,  under  Connecticut  statute,  86. 
exemption  of  corporations  for,  92,  95. 

CHILDREN, 

see  "Adopted  Children";    "Illegitimate  Children." 

CHILDREN'S  AID  SOCIETIES, 
exemption  of,  in  New  York,  84. 

CHILE, 

succession  taxes  in,  2. 

CHRISTIAN  ASSOCIATIONS, 
exemption  of,  92. 


574  INDEX. 

(.References  are  to  Pages.] 

CHURCH  BELL, 

legacy  for  ringing,  taxable,  113. 

CHURCHES, 

exemption  of,  from  legacy  and  general  taxation  In  New  York,  92, 

97,   98. 
when  bequests  to,  not  exempt,  97,  98,  107. 
when  bequest  to  build,  not  exempt,  105,  106. 
not  exempt  as  "incorporated  companies,"  98. 

CITATION, 

of  parties  interested  in  estate,  358,  359,  401. 

defense  upon  return  of,  400,  401. 
CITY, 

when  liable  to  legacy  tax,  119. 

CLEAR  OR  FREE  OF  TAX, 
when  legacy  is,  378. 
rules  as  to,  378,  379. 

CLEAR  VALUE, 

fair  market  value  of  property  to  be  determined,  201. 

COLLATERAL  AND   DIRECT   INHERITANCE  TAX  LAWS, 
defined,  5. 

enumeration  of,  in  United  States,  13  et  seq. 
reasons  for,  2. 

history  of,  under  Roman  law,  7. 
proposed  legislation  in  other  states,  25. 
nature  and  constitutionality  of,  29  et  seq. 
approved  by  economists  and  jurists,  2,  3. 
imposed  upon  privilege  of  succession,  30  et  seq. 
not  a  forfeiture  or  penalty,  7. 
see  "Constitutionality";    "Tax." 

COLLATERAL  AND  LINEAL  CONSANGUINITY, 

rule  relating  to,  133  (note). 

COLLATERAL  HEIRS, 

power  of  state  to  tax  property  passing  to,  33,  34. 
exemption  of,  76. 

COLLEGES, 

general  exemption  of,  92. 

when  not  exempt  from  legacy  and  general  taxation  in  New  York, 
97-99. 


INDEX.  575 

[References  are  to  Pages.J 

COLLEGES— Continued, 

when  not  exempt  as  public  charities,  100. 

buildings,  when  exempt,  78. 

not  exempt  in  North  Carolina  and  Virginia,  100. 

not  exempt  in  Pennsylvania,  100,  111. 

when  not  exempt  as  incorporated  company,  97. 

COLUMBIA  COLLEGE, 

New  York,  legacies  to,  exempt,  99. 

COMITY, 

as  to  taxation  of  foreign  corporations  and  governments,  115. 
rules  as  to  taxing  nonresidents  based  upon,  169. 

COMMERCE, 

when  tax  not  upon,  57. 

COMMISSIONS, 

compensation  to  executor  in  lieu  of,  when  exempt  In  New  York, 

83,  291,  343  (note),  366,  367. 
and  expenses  of  administration,  when  not  deducted  by  apprais- 
er, 368. 
exempt  in  Pennsylvania,  84. 
California,  87. 
Maine,  87. 
Massachusetts,  88. 
Ohio,  89. 

see  "Administrators";   "Executors." 

COMMODITY, 

tax  held  to  be  upon,  in  Massachusetts,  40. 

COMMON  LAW, 

when  statutes  take  effect  at,  419. 

rule  as  to  statutes  repealed  in  New  York,  419. 

remedy  at,  to  collect  tax,  when  not  maintainable,  388. 

liability  of  legatee  to  executor  at,  391,  392. 

COMPENSATION, 

taking  of  private  property  without,  SI- 
COMPROMISE, 

of  tax  between  public  officers,  executors,  and  legatees,  383. 

between  executors  and  heirs,  not  subject  to  legacy  tax,  144,  384. 


576  INDEX. 

[References  are  to  Pages.] 

COMPROMISE— Continued, 

when  state  comptroller  in  New  York  may  make,  with  benefici- 
aries, 383. 
when  may  be  had  under  English  statutes,  383. 
amicable  arrangement  between  sons,  384. 
when  duty  imposed,  384. 

with  disinherited  son,  no  tax  imposed  on  money  paid  to,  384,  385. 
between  contestants  and  devisees,  no  tax  upon,  385. 
between  widow  and  estate,  when  interest  in  partnership  taxable, 
385. 

COMPTROLLER, 

of  the  city  and  county  of  New  York,  see  "County  Treasurer." 

CONCEALMENT, 

effect  of,  upon  appraisement,  258-260. 

CONCLUSIONS  OF  LAW  AND  FACT, 

necessity  for,  in  New  York,  402  (note). 

CONCLUSIVENESS, 

of  judgment  as  to  amount  of  tax,  in  Maryland,  260. 

of  appraisement  not  appealed  from,  258. 

of  certificate  of  superintendent  of  insurance,  in  New  York,  225. 

CONDITIONAL  BOND, 

by  remainder-man  to  pay  tax,  239,  248,  317,  320. 
effect  of  failure  to  give,  by  remainder-man,  239. 

CONGRESS, 

see  "Acts  of  Congress." 

CONNECTICUT, 

statute  of,  498,  Appendix, 
tax  in,  considered,  17. 
exemptions  under  statute  of,  86. 

tangible  and  intangible  property  taxed  in,  167,  168, 172,  193,  194. 
nonresident  decedents,  taxation  of,  166,  167. 
appraisement  of  estates  in,  225. 
see  "Exemptions." 

CONSANGUINITY, 

rules  relating  to,  133  (note). 

CONSIDERATION, 

transfer  to  avoid  tax  must  be  upon,  329. 


INDEX.  577 

[References  are  to  Pages.] 

CONSTITUTIONALITY, 

and  nature  of  inheritance  tax,  29,  72,  192  (note), 
general  power  of  state  over  taxation,  21). 

tax  constitutional,  whether  considered  an   inheritance  or  prop- 
erty tax,  42,  192  (note). 
is  upon  the  privilege  of  succession  to  property,  30. 
power  of  legislature  to  tax  property  by  devise  or  descent,  31 

et  seq. 
nature  of  tax  under  New  York  act  of  1892,  38. 
constitutional  as  a  tax  on  a  "commodity,"  in  Massachusetts,  40. 
under  constitution  of  Minnesota,  40. 
under  federal  income  tax  of  1894,  41. 
under  constitution  of  Maine,  36. 

Michigan,  45. 

New  Hampshire,  70. 

Ohio,  70. 

New  York,  34,  37,  38,  41,  42,  45,  51,  53.  62. 

Tennessee,  State  v.  Alston,  Addenda,  xix. 
tax  may  be  imposed  until  period  of  distribution,  56,  57. 
state  may  give  property  special  situs  for  taxation,  167,  16S. 
power  to  tax  may  be  delegated  to  municipal  corporations,  72. 
surrogates'  courts,  power  of,  to  determine  tax,  71. 
no  power  to  tax  nonresident  personally,  66,  67. 
when  tangible  property  of  nonresident  taxable,  66. 
debt  due  from  nonresident,  65. 
when  acts  need  not  state  object  of  tax,  51,  52. 
titles  to  taxing  acts,  51,  57. 
when  valid  as  a  general  or  special  tax,  45. 
not  a  property  tax,  41,  43. 
when  not  a  direct  tax,  43. 

direct  tax  upon  foreign  real  estate,  when  void,  43,  45,  47. 
foreign  real  estate,  when  taxable  as  personalty,  67. 
as  to  being  equal  and  uniform,  46,  50,  6S,  69. 
terms  "equal"  and  "uniform"  defined,  47. 
when  void  as  unequal,  70,  71. 
Ohio  statute  not  equal  and  uniform,  48,  70. 
not  a  poll  tax,  46. 

not  prohibited  as  double  taxation,  50. 
not  a  taking  of  private  property,  51. 
law  inker.— 37 


578  INDEX. 

[References  are  to  Pages.] 

CONSTITUTIONALITY— Continued, 
when  to  state  object  of  tax,  51. 
notice  and  hearing  to  be  given,  52. 
Maine  statute  provides  for  hearing,  52. 
due  process  of  law  when  not  violated,  53. 
as  to  being  retroactive,  54. 
when  not  ex  post  facto.  54. 

retroactive  taxes,  when  constitutional,  54  et  seq. 
not  a  tax  upon  exports  or  commerce,  57. 
foreign  legatees  may  be  taxed,  57. 
conflicting  with  treaty  or  alien  rights,  58. 
when  statute  void  as  conflicting  with  treaty,  58. 
treaty  with  France,  when  not  violated,  58,  59. 
tax  on  government  and  state  securities,  valid,  59-61. 
United  States  and  municipalities,  legacies  to,  taxable,  62,  64. 
legatees,  domicile  as  to  personal  property  and  its  situs,  64,  68. 
residents  and  nonresidents,  when  taxable,  65. 
stocks  and  bonds  of  foreign  corporations  of  nonresident  dece- 
dents in  New  York,  when  not  taxable,  65,  66  (note), 
exemptions,  when  constitutional,  68,  71. 
exemptions  to  be  general  or  special  statute,  75,  94. 
special  tax  upon  all  persons  within  a  certain  class,  valid,  68. 
constitutional  rule  for  valuation  of  life  estates,  72  (note). 

CONSTRUCTION, 

of  statutes  exempting  from  general  taxation,  74. 

of  special  tax  laws,  75. 

to  be  strict  as  to  exemptions,  74. 

of  statutes  imposing  penalties,  411. 

of  amendatory  statutes,  420. 

of  repealing  statutes,  420. 

CONSTRUCTIVE  POSSESSION, 

when  legatee  liable  for  tax  upon,  393. 

CONTEMPT  OR  ATTACHMENT  PROCEEDINGS, 
to  collect  tax,  355,  356,  391. 

CONTINGENT  AND  FUTURE  ESTATES, 

appraisement  and  taxation  of,  224  et  seq.,  264  et  seq. 

see  "Appraisement";    "Remainders,  Contingent  and  Future 
Estates." 


INDEX.  579 

[References  are  to  Pages.] 

-CONTINGENT  ANNUITIES, 
see  "Annuities." 

CONVERSION, 

when  property  taxable  under  rule  of  equitable,  152,  158. 

CONVEYANCES  OR  TRANSFERS, 

to  evade  tax,  327  et  seq. 

see  "Gifts  inter  Vivos  and  Causa  Mortis." 

CORPORATION, 

when  included  in  word  "person,"  112. 
when  exempt  as  almshouse,  101,  103,  104  et  seq. 
liability  of,  for  transfer  by  foreign  executors,  etc.,  371,  372. 
see  "Charitable  and  Religious  Corporations";    "Exemptions." 

CORPUS, 

taxation  of  remainder  when  life  tenant  has  disposition  of,  286 
(note  99),  242,  243,  325. 

COSTS, 

see  "County  Treasurer  or  Comptroller  in  New  York  County"; 
"District  Attorney." 

COUNTIES, 

legislature  may  delegate  taxing  power  to,  72. 

COUNTY   TREASURER    OR    COMPTROLLER   IN    NEW    YORK 

COUNTY, 
duty  of,  where  tax  unpaid,  356. 
notice  by,  to  district  attorney,  357-359. 
notice  to,  in  proceedings  by  executor,  214. 
costs  of,  when  allowed,  362. 
may  apply  for  appraiser,  391. 

must  be  notified  of  applications  for  appraiser,  391,  400. 
to  pay  appraisers'  fees,  362. 

ex  parte  orders  relieving  from  tax  not  binding  upon,  399. 
right  of,  to  sue  at  law  for  tax,  362  (note),  391. 
mandamus  against,  to  compel  payment  of  appraisers'  fees,  209, 

362. 
commissions  of,  362  (note), 
effect  of  receipt  of,  for  taxes,  upon  purchaser  of  real  estate,  263. 

394. 
when  to  be  made  party  upon  appeal,  404. 


580  INDEX. 

[References  are  to  Pages.] 

COVENANT, 

action  upon,  by  purchaser  for  taxes  paid  on  land,  393,  394. 

CREDITORS, 

when  liable  for,  duty  in  England,  347. 
when  not  liable  on  bequest  for  debts,  344. 

CUM  ONERE, 

when  legacy  taken,  392. 

D 

DAUGHTER, 

word   defined,   132. 
husband  of  deceased,  131. 

DEA1H, 

by  drowning,  presumption  as  to  survivorship,  133  (note). 

any  property  passing  at,   liable,  418,  419. 

exceptions  to  rule,  418,  419. 

conveyances  inter  vivos  and  causa  mortis  to  take  effect  after, 

327  et  seq. 
appraisement  of  estates  of  decedents  upon,  235,  243,  296. 

DEBT, 

tax  considered  as  debt  due  the  crown  in  England,  12,  390. 

rule  in  England  where  there  are  debts  abroad,  202. 

action  of,  under  Louisiana  statute  against  heirs,  392. 

action  of,  against  executors,  etc.,  390. 

exemption  of,  where  left  as  legacies,  230,  343  et  seq.  407. 

test  as  to  whether  a  legacy  is  for  a  debt  or  a  gratuity,  344,  345. 

where  legacy  not  a  gift,  but  payment  of  a  valid  claim,  not  tax- 
able, 346,  347. 

in  England  forgiveness  of  bonded  debt  by  will  liable  to  duty,  347. 

legacy  to  creditors  to  pay  debts  of  husband  liable,  347. 

when  legacy  for,  taxable,  343,  345-347. 

outlawed  by  statute  of  limitations,  not  taxable,  347. 

deduction  of  debts  from  fair  market  value,  rule  in  New  York,  201 
(note),  218,  220-222. 

when  mortgage  debt  may  be  deducted,  219,  220. 

deduction  of,  in  Pennsylvania,  241,  242 

rules  where  nonresidents,  exceed  value  of  estate,  200,  201. 


INDEX.  581 

[References  are  to  Pages.] 

DEBT— Continued, 

proved  after  payment  of  tax,  rule  of  recovery,  201,  202. 
state  may  tax  debt  due  from  nonresident,  172  (note  102). 

DECEDENT, 

tax  not  generally  charge  upon  estate  of,  138,  139,  378. 
when  executrix  incompetent  to  testify  upon  claims  against,  383. 
see  "Legatees";   "Nonresident  Decedents";   "Resident  Dece- 
dents." 

DECREE, 

of  surrogate  not  binding  unless  parties  notified,  355,  398,  400. 

power  of  surrogate  to  enforce,  against  executors  and  legatees,  355. 

obtained  ex  parte,  when  binding  upon  state,  354. 

contempt  proceedings  for  failure  to  pay  tax  under,  355,  391. 

when  not  vacated  by  motion,  401. 

effect  of  amendatory  statute  upon,  420,  421. 

DEDUCTION, 

of  debts  and  expenses  by  appraiser,  221-223. 

DEED  TO  DEFEAT  TAX, 

when  within  statute,  327,  329,  331,  332. 
when  not  within  statute,  334,  335. 
under  English  statutes,  330,  336. 

rights  of  vendee  under,  against  grantor,  for  taxes  paid,  409,  410, 
see  "Gifts  inter  Vivos  and  Causa  Mortis." 

DEFENSE, 

by  heir  or  legatee  in  proceeding  to  collect  tax,  392. 

DEFINITIONS, 

almshouse,  92,  197,  101  et  seq. 

annuity,  266. 

being  within  the  commonwealth,  134  (note). 

bequest,  100. 

children,  120. 

"clear  market  value,"  201. 

"clear  value,"  201. 

"clear  value  of  such  estates,"  201,  224. 

"charitable  purpose,"  86. 

collateral  inheritance  tax,  5. 

endowment,  100. 

estate,  134,  136,  138,  142,  229,  230,  2SL 


582  INDEX. 

[References  are  to  Pages.] 

DEFINITIONS— Continued, 

"exempted  by  law  from  taxation,"  95,  96,  115, 

fair  and  clear  market  value,  201,  224. 

foreign  legacies,  197. 

forfeiture,  7,  40G. 

general  tax,  45. 

gift,  100. 

house  of  religious  worship,  111,  112. 

incorporated  companies,  99. 

intangible  property,  173,  and  note. 

legacy,  144,  266,  343. 

legacy  and  succession  tax,  5,  7,  8,  30,  31. 

lineal  and  lawful  descendants,  132. 

party  interested,  397. 

penalty,  7,  406  (note). 

person,  112. 

persons  interested,  357  (note),  359  (note). 

poll  tax,  46. 

poorhouse,  102. 

property,  136,  138,  229,  230,  28L 

property  tax,  41. 

public  library,  112. 

public  worship,  112. 

schoolhouse,  112. 

seminary  of  learning,  111. 

special  tax,  45. 

"strangers  to  the  blood,"  131. 

succession,  134,  274. 

"successor,"  under  English  acts,  273,  274. 

succession  tax,  5. 

tangible  property,  173,  and  note. 

"then  valuation  of  the  legacy  or  devise,"  240. 

transfer,  137,  140,  244  (note). 

unavoidable  cause  of  delay,  413,  414,  416. 

"valuable  and  adequate  consideration,"  329. 

widow,  131. 

DELAWARE, 

tax  in,  considered,  17. 
^•motions  under  statute  of,  85. 


INDEX.  583 

[References  are  to  Fages.] 

DELAY, 

unavoidable  cause  of,  in  settling  estate,  effect  of,  413,  416. 

DELEGATION, 

by  state  to  counties  of  taxing  powers,  when  valid,  72. 

DEMAND, 

for  payment  of  tax,  when  necessary,  359  (note  52),  396  (note),  410. 

DENMARK, 

succession  taxes  in,  2. 

DE  NOVO, 

when  proceedings  returned  to  appraisers  as,  263. 

DESCENDANTS, 

see  "Exemptions";    "Lineal  and  Lawful  Descendants." 

DESCENT, 

power  of  legislature  to  tax  property  by,  32,  33. 

DEVISE, 

power  of  legislature  to  tax  property  by,  32, 
when  "free"  or  "clear"  of  tax,  379  et  seq. 

DEVISEE, 

tax  primarily  charged  upon  estate  of,  377,  3S0. 
liable  to  executor  for  tax,  391. 
not  liable  unless  he  accepts  legacy,  392. 
constructive  possession  makes  liable,  393. 

as  to,  when  succession  taxes  are  chargeable  against,  3S0  (note), 
when  not  relieved  from  tax,  by  will,  378,  380. 
when  relieved  by  will  from  tax,  executor  liable,  379,  380. 
when  taking  land,  liable  for  tax,  381. 
alien,  liability  of,  393. 
see  "Legatees." 

DEVOLUTION. 

succession  or  legacy  tax  upon,  6. 

DIRECT  TAX, 

when  legacy  and  succession  tax  not,  43. 

when  tax  upon  foreign  real  estate  deemed  void  as,  43  et  seq.,  67. 

DISCHARGE. 

when  receipt  does  not,  as  to  executor,  375,  376,  399. 


584  INDEX. 

[References  are  to  Pages.] 

DISCRIMINATION, 

in  favor  of  nonresidents,  not  favored,  1G7,  170. 
policy  of  tax  laws  to  prevent,  192,  196. 
see  "Nonresident  Decedents." 

DISINHERITED  SON, 

moneys  paid  to,  by  executor,  when  not  taxable,  384. 

DISPENSARIES, 

exemption  of,  92,  97. 

DISPOSITION, 

of  property,  what  constitutes,  withiu  English  acts,  330  (note). 

DISTRIBUTION, 

power  of  state  to  tax  until  final,  56,  57. 

DISTRICT  ATTORNEY, 

in  New  York,  duty  of,  where  tax  unpaid,  356-358,  391,  395,  397. 

method  of  procedure  by,  395-397. 

when  county  treasurer  and  district  attorney  may  proceed  to  col- 
lect, 358. 

citation  by,  to  compel  payment  of  tax,  357. 

citation,  upon  whom  to  be  served,  358. 

service  of  citation  regulated  by  Code,  357. 

duty  of  surrogate  as  to,  357. 

cannot  be  begun  until  notified  by  county  treasurer  or  comptroller, 
359  (note). 

hearing  and  enforcement  of  decree,  357. 

liability  to  tax  may  be  determined  in  proceeding  by,  358. 

proceeding  to  be  instituted  in  name  of,  35S. 

when  proceeding  by,  has  precedence,  35S. 

proceedings  void  when  persons  interested  not  notified  by,  359. 

when  proper  party  upon  accounting  of  executor,  359,  397. 

cannot  compel  payment  until  18  months  under  act  of  1887,  360. 

executor  or  trustee  personally  liable  for  costs  of,  360. 

amount  of  costs  of,  360,  and  note  59. 

not  entitled  to  costs  unless  successful,  360,  361. 

application  of,  for  costs,  when  insufficient,  360,  361. 

forms  used  by,  under  New  York  statute,  527  et  seq. 
see  "Remedy  and  Practice." 

DIVIDENDS, 

corporations  making,  when  taxable,  84. 


INDEX.  5 80 

[References  are  to  Pages.] 

DOMICILE, 

doctrine  of,  considered,  169,  195,  19G. 

comments  of  Lord  Brougham  upon  doctrine  of,  162. 

doctrine  of,  as  to  personal  property,  when  first  applied,  161. 

rule  as  to,  under  English  acts,  159-166. 

when  succession  duty  not  effected  by,  158. 

right  to  tax  does  not  depend  upon,  170. 

liability  of  real  estate  not  affected  by,  165. 

considered  with  reference  to  taxation  of  nonresidents  in  New  York 

and  elsewhere,  192-194. 
foreigners  acquiring  new,  liable  to  tax,  164,  166. 
doctrine  of,  when  not  followed  in  United  States,  166. 
rule  of,  as  affecting  foreign  legacies,  197. 
rules  where  there  are  debts  at,  19S  et  seq. 
presumed  to  continue,  158. 

when  declaration  of  decedent  controlling  as  to,  158. 
change  of,  how  acquired,  158. 
facts  sufficient  to  show  change  of,  166  (note), 
effect  of  change  of,  under  acts  of  congress,  158. 

see   "Constitutionality";    "Nonresident   Decedents";    "Resident 
Decedents." 

DOMICILE  AND  SITUS, 

general  rules  as  to,  64,  145,  159  et  seq. 

what  facts  sufficient  to  show  change  of  domicile,  166  (note), 
see  "Nonresident  Decedents";   "Resident  Decedents." 

DOUBLE  TAXATION, 
rules  as  to,  50,  187,  193. 
constitutional,  187. 
questions  of  public  policy  involved  in,  187. 

DO  WELL, 

history  of  taxation  in  England,  12. 

DOWER, 

when  not  taxable,  131. 

DUE  PROCESS  OF  LAW, 

when  not  violated  by  these  acts.  53. 


00(0  INDEX. 

[References  are  to  Pages.] 

E 

ECCLESIASTICAL  CORPORATIONS, 

exemption  of,  in  New  York  and  Connecticut,  83,  84,  86,  92,  97. 

EDUCATIONAL   CORPORATIONS, 
exemption  of,  83,  84,  8G,  92,  97. 

ELECTION, 

given  remainder-man  to  pay  tax  or  file  bond,  319. 
of  remainder-man  to  file  bond,   when  waived,  321. 

ENDOWMENT, 
defined,  100. 

ENGLAND, 

history  of  legacy,  succession,  and  estate  duty  in,  4,  8,  12,  13. 

Lord  North  adopted  the  Roman  system,  8,  9. 

succession  duty  originated  by  Gladstone,  9. 

scope  of  succession  duty  act,  10. 

list  of  English  authors  on  legacy,  estate,  and  succession  duties, 

11  (note),  12. 
revenues  derived  in,  11,  12. 
duties  imposed  by  legacy  act,   12  (note). 

by  succession  act,  12  (note), 
conflict  in  courts  of,  as  to  taxing  property  of  nonresidents,  147. 
taxation  of  remainders  and  future  estates  in,  273,  274. 
exemption  of  charitable  institutions  in,  10. 

EQUAL  AND  UNIFORM, 

inheritance  tax,  valid  as,  46. 

when  tax  void  as  not  being,  46  (note),  48. 

EQUALITY, 

favored  under  legacy  tax  laws,  167. 

EQUITABLE  CONVERSION, 

when  real  estate  taxable  under  doctrine  of,  152,  158,  371. 
doctrine  in  England  as  to,  153,  371. 

New  York,  153,  154-371. 

Pennsylvania,  155-158,  371. 

EQUITY, 

bill  in,  to  recover  tax,  when  maintainable,  389. 


INDEX.  587 

[References  are  to  Pages.] 

ESTATE, 

defined,  134-136,  230,  378. 
of  decedent,  when  liable  for  tax,  379. 

estates  in  possession  and  expectancy,  New  York  Revised  Stat- 
utes as  to,  279  (note), 
small  estates,  exemption  of,  134,  138-140,  142,  229,  230. 

see  "Exemptions";   "Nonresident  Decedents";    "Resident  De- 
cedents." 

ESTATE   DUTY, 

in  England,  act  of  1SS9,  11. 

ESTOPPEL, 

when  receipts  for  taxes  not  an,  399. 

what  constitutes,  against  alien  devisee.  393. 

EVIDENCE, 

power  of  surrogate  in  New  York  to  take,  401. 
when  certificate  of  superintendent  of  insurance  as  to  value  con- 
clusive, 225,  280,  281. 

EXECUTION, 

rights  of  vendee  to  property  sold  under,  409,  410. 
to  issue  before  contempt  proceedings  begun  against  executor, 
355,  356. 

EXECUTORS, 

deemed  agents  of  state  in  Pennsylvania,  374. 
duty  of  regarding  inheritance  tax,  363  (note),  374. 
compensation  or  commission  of,  when  exempt,  83,  84,  87-S9,  366- 

368. 
entitled  to  notice  of  appraisement,  369,  400. 
primary  duty  of,  to  apply  for  appraiser,  368,  369,  397. 
effect  of  decree  made  in  proceedings  by,  without  notice  to  state, 

375,  376. 
application  of,  for  appraiser,  when  dismissed,  397. 
notice  to  parties  in  proceedings  by,  369. 
liability  of,  to  pay  tax,  perpetual  in  Pennsylvania,  374. 
penalty  for  neglect  to  pay  tax  chargeable  to,  374. 
to  give  bond  to  pay  tax,  363. 
to  deduct  tax  from  legacy,  364,  365,  369,  372. 
cannot  deliver  legacy  until  tax  collected,  364,  365,  369. 
cannot  deliver  specific  taxable  property  until  tax  collected,  365. 


588  INDEX. 

[References  are  to  Pages.] 

EXECUTORS— Continued, 

may  sell  property  to  pay  tax,  364,  365. 

when  tax  payable  by,  in  New  York,  363. 

receipt  to  for  payment,  form  of,  364. 

cannot  have  final  accounting  where  tax  unpaid,  364. 

when  justified  in  paying  legacies  without  deducting  tax,  365. 

must  collect  tax  from  personal  property  in  his  hands,  365. 

when  cannot  be  compelled  to  pay  tax  upon  a  devise  of  land  to 
himself,  372. 

when  coexecutors  liable  for  payment  of  tax  upon  share  of,  372. 

cannot  maintain  action  against  legatee  for  recovery  of  tax  on 
personal  property,  365,  366. 

directed  to  continue  partnership  business  until  it  could  be  dis- 
posed of  to  advantage,  when  tax  on  payable,  366. 

liability  of,  not  determined  on  motion  of,  376. 

discretionary  power  of,  to  use  principal  for  life  tenant,  287. 

receipt  for  taxes  "in  full"  given  by  register,  when  it  protects, 
376. 

common-law  liability  of,  388. 

actions  against,  under  various  statutes,  3SS-392. 

action  at  law  by  county  treasurer  against,  381,  382,  391. 

liability  of,  in  personam,  under  English  acts,  373,  389-392. 

where  legacy  or  annuity  relieved  by  will  from  tax,  executor 
liable,  379. 

provisions  of  will  releasing  legacies  also  applies  to  legacies  in 
codicil,  379. 

cannot  pay  tax  in  New  York  as  part  of  expenses  of  administra- 
tion under  directions  in  will,  379,  380. 

on  settlement  of  executor's  account  error  to  direct  part  of  estate 
to  be  held  to  pay  legacy  taxes,  380  (note  164). 

where  will  releases  legatee  from  duty,  must  be  paid  by,  379. 

personal  liability  of,  for  tax,  363,  373,  3S9. 

when  personally  liable  for  tax  under  New  York  statute,  365, 
374,  375,  390,  391. 

rule  as  to  payment  of  tax  by,  in  Pennsylvania,  374. 

personal  liability  of,  in  Pennsylvania,  374. 

liability  of,  and  legatee,  under  acts  of  congress,  373,  374,  3S8, 
389. 

liability  of,  for  tax,  under  power  of  appointment,  3S0. 

frauds  by,  upon  the  estate,  when  legatee  not  liable  for,  383. 


INDEX.  589 

[References  are  to  Pages.] 

EXECUTORS— Continued, 

when  executrix  incompetent  to  testify  in  her  own  behalf  for  claim 

on  estate,  383. 
when  protected  for  paying  tax  upon  legacy  to  infant,  382. 
when  to  pay  tax  on  real  estate,  374. 
not  to  pay  tax  on  real  estate  where  it  passes  to  heirs  directly,  372, 

381. 
when  not  liable  for  tax  upon  foreign  real  estate,  371. 
liability  of  for  proceeds  of  foreign  real  estate,  371. 
rule  in  Pennsylvania  regarding  foreign  real  estate,  371. 
payment  of  tax  by,  where  will  directs  foreign  real  estate  to  be 

converted  into  personalty,  371. 
proceedings  against,  by  district  attorney,  to  collect  tax,  357-360. 
district  attorney  proper  party  upon  final  accounting  of,  359. 
on  final  settlement  of  accounts,  error  to  direct  part  of  estate  to 

be  held  to  pay  legacy  taxes,  380  (note), 
contempt  or  attachment  proceedings  against,  391. 
liability  of  legatee  to,  by  action  at  law,  for  taxes  paid,  373,  381, 

382. 
jurisdiction  of  surrogate  in  action  at  law  by,  382. 
payment  of  legacy  out  of  property  of,  when  not  taxable  against, 

382,  383. 
compromise  between,  and  legatee,  383. 
when  liable  for  interest,  415  (note), 
resisting  state's  claim,  chargeable  with  interest,  412. 
when  personally  liable  for  costs  of  district  attorney,  360. 
when  relieved  from  penalty  and  interest,  262,  413  et  seq. 
when  petition  for  remission  of  penalty  insufficient,  416. 
application  of,  for  refund  of  tax  paid  in  error,  403,  404. 
foreign,  when  liable  for  stocks  and  loans  transferred,  370  (note 

109),  371,  372. 
failure  to  sell  seat  in  stock  exchange,  417. 
foreign,  liability  of,  for  tax,  370,  371. 
commissions  of,  when  not  taxable,  306. 
when  renounced  by,  366. 
when  taxable,  366. 
extra  compensation  to,  in  addition  to  commissions,  366. 
reasonable  compensation  in  lieu  of  commissions  to,  367. 
when  state  may  inquire  into  services  of,  367. 
burden  upon,  to  prove  value  of  services,  367. 


590  INDEX. 

[References  are  to  Pages.] 

EXECUTORS— Continued, 

provision  for,  in  lieu  of  commissions,  accounting  to  be  had,  367. 
not  legally  entitled   to  commissions   and   expenses   until   an   ac- 
counting, 368  (note). 

"EXEMPTED  BY  LAW  PROM  TAXATION," 

denned,  95,  96,  98,  110. 

EXEMPTIONS, 

taxation  the  general  rule,  74. 

when  in  the  discretion  of  the  legislature,  141. 

policy  of  inheritance  and  succession  tax  laws  against,  75,  134. 

when  constitutional,  68. 

when  liberal  construction  to  be  followed  in  granting,  74. 

statutes  granting,  when  strictly  construed,  75. 

to  be  by  general  or  special  law,  75,  94. 

from  property  tax  do  not  relieve  from  succession  tax,  94. 

foreign  corporations  and  governments,  when  not  exempted,  115. 

of  small  estates,  134. 

rule  in  Maine,  140. 

in  New  York,  estates  of  $250  and  $10,000,  134  et  seq.,  138-140, 

229,  230. 
must  include  the  whole  estate,  135,  136,  139,  140. 
in  Ohio,  when  under  $20,000,  134. 
in  Pennsylvania,  estates  under  $250,  142,  230. 
must  include  the  whole  estate,  142,  230. 
acts  of  congress,  14,  76,  144. 
adopted  children,  120,  122,  123. 
appraiser  not  to  report,  213. 
aliens,  foreign  legatees,  and  nonresidents,  133. 
almshouses,  92,  97-99,  101,  103,  104,  108,  109. 
American  statutes,  13,  68,  75,  83,  92. 
animals,  societies  to  protect,  83,  92. 
benefit  societies,  83,  92. 
cemeteries,  92. 

charitable  and  religious  corporations,  83,  92,  106. 
Christian  associations,  83,  92. 
churches,  83. 

not  exempt  as  "incorporated"  companies,  97,  98. 
colleges,  97,  98. 
•corporations  having  income  not  exempt,  84. 


INDEX.  591 

[References  are  to  Pages.] 

EXEMPTIONS— Continued, 
debt  left  as  legacy,  343. 
dispensaries,  92. 
English  statutes,  75. 

enumeration  of  statutory  exemptions,  75,  76,  106. 
executor's  compensation,   366. 
executor,   trust  to,   336. 
foreigners  under  English  statutes,  65,  66. 
foreign   real  estate,    143. 
government  and  state  bonds,  59,  174,  177. 
hospitals,  92. 
homes,    92. 

houses  of  industry,  92. 
incorporated  companies,   97,  98. 
insurance  societies,  92. 
legacies  for  masses,  92. 
legacies  subject  of  secret  trust,  92. 
museums  of  history  and  art,  99. 
orphan  asylums,  92. 

public  libraries,  92,  95  (note),  97,  99,  101. 

retroactive  statutes  as  to  adopted  children,  55  (note),  120,  421,  422. 
Roman  law,  7. 

state  certificates,  59,   174,  177. 
California,  87. 

adopted  child  or  children,  87. 

brother,  87. 

bequests  to  executors,  87. 

estates  of  less  than  $500,  87. 

father,  87. 

husband  of  daughter,  87. 

husband,  87. 

lawful  issue,  87. 

lineal  descendants  born  in  lawful  wedlock,  87. 

societies,  etc.,  exempt  from  taxation,  87. 

wife  or  widow  of  son,  87. 
Connecticut,  86. 

adopted  children  and  descendants,  86. 

benevolent   corporations,   86. 

bequests  for  charitable  and  public  purposes,  86. 

ecclesiastical  corporations,  86. 


592  INDEX. 

[References  are  to  Pages.] 

EXEMPTIONS— Continued, 

educational  corporations,  86. 

estates  under  $1,000,  86. 

father,   86. 

husband,  86. 

husband  of  daughter,  86. 

lineal  descendants,  86. 

missionary  corporation  or  object,  80. 

mother,  86. 

public  purposes,  86. 

wife  or  widow  of  son,  86. 
Delaware,  85. 

children,  85. 

estates  under  $500,   85. 

father,   85. 

lineal  .descendants,  85. 

mother,    85. 

wife,  85. 
Illinois,  90,  91. 

mother,  91. 

father,  91. 

husband,  91. 

wife,  91. 

brother  and  sister,  91. 

widow  of  son,  91. 

lineal  descendant,  91. 
Maine,  87. 

adopted  child,  87. 

bequests  to  executors,  87. 

educational,  charitable,  etc.,  institutions,  87. 

estates  above  $500,  87. 

executor's  commissions,  87. 

father,  87. 

husband,  87. 

husband  of  daughter,  87. 

lineal  descendant  of  adopted  child,  87. 

mother,  87. 

wife,  87. 

wife  or  widow  of  sou,  87. 


INDEX.  593 

[References  are  to  Pages.] 

EXEMPTIONS— Continued, 
Maryland,  85. 

children,  85. 

estates  under  $500,  85. 

father,  85. 

husband,  85. 

lineal  descendants,  85. 

mother,  85. 

wife,  85. 
Massachusetts,  88. 

adopted  child,  88. 

brother,   88. 

charitable,  etc.,  institutions,  88. 

estates  of  less  than  $10,000,  88. 

executor's  compensation,  88. 

father,  88. 

husband,  88. 

husband  of  decedent's  daughter,  88. 

lineal  descendant,  88. 

lineal  descendant  of  mother,  adopted  child,  88. 

wife,  88. 

wife  or  widow  of  son,  88. 
New  Jersey,  88. 

brother  or  sister,  88. 

children,  88. 

churches,  hospitals,  etc.,  88. 

estates  under  $500,  88. 

father,  88. 

husband,  88. 

husband  of  daughter,  88. 

lineal  descendants  born  in  wedlock,  88. 

mother,  88. 

wife,  88. 

wife  or  widow  of  son,  88. 
New  York,  77-84. 

enumeration  of  exemptions  in,  under  general  statutes,  77. 

exemptions  under  collateral  tax  act  of  1887,  79. 

exemptions  under  the  act  of  1892,  80,  S4. 

religious  and  other  corporations  under  act  of  1890,  83. 
law  inher. — 38 


594  INDEX. 

[References  are  to  Pages.} 

EXEMPTIONS— Continued. 

to  be  by  general  or  special  statute,  93,  94,  96. 

almshouses,  97,  101. 

almshouses,  what  institutions  are,  97,  101,  102,  103,  104,  108. 

almshouses  defined,  101. 

asylums,  97. 

beneficiary  society,  113. 

benevolent  societies,  84. 

Bible  societies,  83. 

bishops,  95. 

boards  of  foreign  missions,  99. 

Brooklyn  public  library,  99. 

buildings  for  public  worship,  97. 

business  corporations  not,  84. 

cemeteries,  97,  105. 

charitable  corporations,  98,  106,  107. 

children's  aid  societies,  84. 

church,  when  not,  93,  97,  98. 

college  buildings,  99. 

college  not  exempt  as  "incorporated  company,"  98,  99,  107. 

colleges  not  exempt  by  general  law,  93,  97,  99,  108. 

Columbia  College,  09. 

corporations  exempt  from  general  taxation,  83. 

courthouse  and  jail,  78. 

dispensaries,  92,  97. 

educational  societies,  83. 

executor's  bequest  to,  in  lieu  of  commissions,  83,  84,  87-89, 

366-368,  374. 
foreign  religious,  etc.,  corporations,  99,  100,  106,  115. 
foreigners,  investments  of,  147  (note), 
funeral  expenses  for  burial  plot,  113. 
geographical  society  as  a  public  library,  112. 
homes  for  seamen,  78,  97,  101. 
hospital  exempt  as  almshouse,  97,  99,  110. 
houses  for  public  worship,  101. 
homes  for  aged,  105,  108. 
homes  for  poor,  101. 
homes  of  industry,  78. 
"incorporated  companies,"  98,  99,  107. 
income,  effect  of  upon  exemptions,  110. 


ikdex.  595 

[References  are  to  Pages.] 

EXEMPTIONS— Continued, 

illegitimate  children,  120,  130. 

infirmaries,  84. 

legacies  to  collaterals  less  than  $500,  83,  134  et  seq.,  343 

(note), 
lineal  heirs,  estates  of  less  than  $10,000,  83,  134  et  seq. 
literary  corporations,  84. 
masses,  legacies  for,  98,  113. 
missionary  societies,  84,  10G. 
monied  corporations  not,  84. 
museums  of  art  and  history,  99. 

mutually  acknowledged  relation  of  parent,  82,  123-129. 
mutual  benefit  assurance  association,  113. 
orphan  asylums,  101. 
Paulist  Fathers,  10(3. 
poorhouses,  97,  101. 

profit,  corporations  making,  not  exempt,  84. 
public  libraries,  92,  95,  97,  99,  101. 
public  worship,  buildings  for,  97,  112. 
reformatories,  78. 
religious  corporations,  95,  98,  99. 
retroactive  exemptions,  80  (note),  418,  421,  422. 
scientific  societies,  84. 
schoolhouses,  78,  101,  112. 
seamen,  society  to  improve,  78. 
seminary  of  learning,  78. 
societies  to  protect  animals,  84. 
stock  corporations  not,  84. 
tract  societies,  84. 
trust  property,  when  exempt,  133. 
United  States  government,  84  (note  40),  115. 
Young  Men's  Christian  Association,  111. 
North  Carolina,  S6. 

ancestor  of  husband  or  wife,  86. 

brother,  86. 

charitable  institutions  not  exempt,  100. 

churches  not  exempt  in,  100. 

colleges  not  exempt  in,  108. 

husband,  86. 

lineal  descendants,  86. 


596  INDEX. 

[References  are  to  Pages.] 

EXEM  PTI 0  N  S— Continued, 

sister,  86. 

wife,  86. 
Ohio,  88-90. 

adopted  child,  89. 

bequests  to  executors,  89. 

brother,   89. 

father,  89. 

husband,  89. 

husband  of  daughter,  89. 

lineal  descendants,  89. 
of  adopted  child,  89. 

mother,  89. 

person  recognized  as  adopted  child,  89. 

lineal  descendants  of,  89. 

wife,  89. 

wife  or  widow  of  son,  89. 

$200  from  appraised  value,  89. 
Pennsylvania,  84. 

adopted  children,  84,  120. 

bequests  to  executors  in  lieu  of  commissions,  84. 

burial  places,  84. 

children,  84. 

charitable  institutions,  when  not,   100. 

charitable  institutions  making  profit,  84. 

college  as  public  charity,  111. 

constitutional  provisions  as  to,  84  (note),  110. 

dower,  131. 

estates  of  less  than  $230,  84. 

executors,  bequests  to,  in  lieu  of  commissions,  84. 

father,  84. 

grandmother,  when  not  as  next  of  kin,  132. 

gift,  bequest,  or  endowment,  100. 

graves,  bequest  to  keep  in  order,  113. 

illegitimate  children,  120,   130. 

legitimation  by  act  of  legislature,  130. 

lineal  descendants,  84. 

masses,  bequest  for,  113. 

mortgage  of  nonresident  decedent  upon  real  estate,  177. 

mother,  84. 


INDEX.  h  9  7 

[References  are  to  Pages.] 


EXEMPTIONS— Continued, 

nonresident,  stock  and  bonds  of,  177. 

places  of  religious  worship.  84,  85  (note). 

property  under  power  of  appointment,  133. 

public  chanties,  84,  85   (note). 

public  property,  84,  85  (note). 

widows,  84. 

Wife,  84. 

wife  or  widow  of  son,  84. 
Tennessee,  90. 

brothers,  90. 

children,  90. 

daughters-indaw,  90. 

father,  90. 

grandchildren,  90. 

husband  or  wife,  90. 

mother,  90. 

sisters,  90. 

sons-indaw,  90. 

wife,  90. 
Virginia,  85. 

brothers,  85. 

charitable  institutions,  93,  94. 

churches  not  exempt  in,  100. 

colleges,  100. 

father,  85. 

husband,  85. 

lineal  descendants,  85. 

mother,  85. 

nephews,  85. 

nieces,  85. 

orphan  asylums,  111. 

sisters,   85. 

surviving  husband,  85. 

wife,  85. 
West  Virginia,  85. 

children,  85. 

estates  under  $1,000,  85. 

father,  85. 

lineal  descendants,  85. 


598  index. 

[References  are  to  Pages.] 

EXEMPTIONS— Continued, 
mother,  85. 
wife,  85. 

see  "Nonresident  Decedents";   "Resident  Decedents." 

EX  PARTE  DECREES, 

when  not  binding  upon  public  officers,  399. 

EXPERT  APPRAISERS, 

when  may  be  appointed  in  Pennsylvania,  210,  Appendix,  475. 

EXPORTS, 

or  commerce,  when  tax  not  upon,  57. 

EX  POST  FACTO, 

when  legacy  acts  not  void  as,  54. 

F 

FACT, 

findings  of,  under  New  York  statute,  402  (note). 

"FAIR  MARKET  VALUE," 

see  "Appraisement";   "Appraisers." 

FATHER, 

See  "Exemptions." 

FEE, 

estates  in,  duty  of  appraiser  as  to,  209. 

FEES, 

of  county  treasurers,  of  appraiser,  see  "Appraisers";    "County 
Treasurer,"  etc. 

FEUDAL  SYSTEM, 

succession  tax  under,  8. 

FINANCE  ACT, 

taxing  real  and  personal   property   under  English  law   1894,   11 
et  seq. 

FINCH,  JUSTICE, 

opinion  of  collateral  tax,  3  (note). 

FINDINGS  OF  FACT, 

necessity  for,  402  (note). 

FOREIGN  CORPORATIONS  AND  GOVERNMENTS, 
legacies  to,  taxable,  115. 


INDEX.  599 

[References  are  to  Pages.] 

FOREIGN    DOMICILE, 

See  "Domicile";    "Nonresidents." 

FOREIGNERS, 

tax  upon  legacies  to,  valid,  64,  65. 

investment  property  of,  when  exempt  in  New  York,  147  (note). 
liability  of,  to  tax  in  England,  per  Jessel,  M.  R.,  164-166. 
when  not  relieved  from  penalty  as,  415. 
see  "Nonresident  Decedents." 

FOREIGN  EXECUTORS, 

liability  of,  for  tax,  174,  175. 
transferring  stock  within  state,  174,  370-372. 
see  "Executors." 

FOREIGN  HEIRS, 

action  of  debt  against,  for  taxes,  392. 
FOREIGN  LEGACIES, 

liability  of,  in  England,  to  tax,  160,  161. 

when  not  taxable,  197. 

FOREIGN  LEGATEES, 
when  liable  to  tax,  133. 

see  "Constitutionality";   "Nonresident  Decedents." 

FOREIGN  REAL  ESTATE, 

tax  upon,  when  void  as  direct  tax,  43  et  seq.,  143. 
liability  of,  to  tax,  143. 

when  taxable  as  personalty,  under  doctrine  of  equitable  conver- 
sion, 143,  144,  152. 
see  "Real  Estate." 

FOREIGN,  RELIGIOUS,  AND  OTHER  CORPORATIONS, 
when  not  exempt  from  tax,  99,  100,  106. 

FORFEITURE, 

when  tax  not  a,  7,  406. 

FORMS, 

under  laws  of  New  York,  386  (note) ;  Appendix,  527  et  seq. 
FRANCE, 

succession  taxes  in,  2. 
FRAUD, 

effect  of,  upon  receipt  for  taxes,  377,  399. 

effect  of,  upon  appraiser's  report,  25S,  259. 


GOO  INDEX. 

[References  are  to  Pages.] 

FRAUD -Continued, 

another  appraisement  allowed  for,  258,  259. 
see  "Remedy  and  Practice." 

FRAUDULENT  TRANSFERS, 

liability  of,  to  tax,  31,  327,  330. 
when  a  misdemeanor  to  make,  328. 

see  "Gifts  inter  Vivos  and  Causa  Mortis." 

FREE  OR  CLEAR  OF  TAX, 

when  legacy  is,  377,  378. 

FRENCH  SPOLIATION  CLAIMS, 

money  arising  from,  not  taxable,  144. 

FUTURE  ESTATES, 

appraisement  and  taxation  of,  224  et  seq.;   264  et  seq. 

see  "Appraisement";    "Remainders,  Contingent  and  Future 
Estates." 

G 

GENERAL  GUARDIAN, 

payment  of  tax  by  executor  with  knowledge  of,  382. 

GENERAL   LAWS, 

exemptions  by,  94-96. 

exemption  of  charitable  institutions  under,  97-99. 

GENERAL  OR  SPECIAL  TAX, 
legacy  laws  valid  as,  45. 

GENERAL  TAX  LAWS, 

do  not  restrict  the  inheritance  tax.  208. 

GEOGRAPHICAL  SOCIETY, 

exemption  of,  as  public  library,  112. 

GERMANY, 

inheritance  taxes  in,  2. 

GIBBON,  EDWARD, 

upon  English  succession  tax,  7,  8, 

GIFT, 

defined,  100. 


INDEX.  G01 

[References  are  to  Pages.] 

GIFTS  INTER  VIVOS  AND  CAUSA  MORTIS, 

statutory  provisions  concerning,  31,  327-330. 

provisions  of  New  York  Act  1892,  327,  328. 

act  of  North  Carolina  as  to  fraudulent  gifts,  328. 

general  rule  as  to  such  gifts  or  grants,  5,  329. 

effect  of  bona  fide  conveyance  during  lifetime,  329. 

rule  as  to,  under  acts  of  congress,  329. 

taxation  of,  under  English  acts,  329,  330,  330,  338  (note). 

donatio  mortis  causa,  330. 

gifts  inter  vivos  made  12  months  before  death,  330. 

gifts  made  any  time,  where  donor  retains  any  interest,  330. 

joint  interests  vesting  in  survivor,  330. 

property  settled  with  a  life  interest,  330. 

property  where  grantor  has  power  of  revocation,  330. 

transfer  by,  not  invalidated,  330. 

fund  liable  in  hands  of  cestui  que  trust,  330. 

need  not  be  intentional  or  fraudulent,  330. 

what  deemed  sufficient  to  subject  these  gifts  to  tax,  330. 

statute  includes  most  intricate  transfers,  330. 

tax  payable  on,  where  grantee  clothed  with  mere  legal  title,  331. 

what  deeds  within  the  statute,  331. 

transfer  where  income  for  life  is  reserved  to  grantor,  331. 

transfer  of  shares  reserving  dividends,  331. 

assignment  with  right  of  revocation  not  exercised,  331. 

deed  of  trust  directing  devise  of  property  to  collaterals  and 
charity,  331. 

deed  of  trust  reserving  income,  332. 

deed  of  trust,  of  stocks  and  bonds,  to  foreign  corporation  as  trus- 
tee, 332. 

where  gi-antor  retains  power  of  modification  or  revocation  liable, 
331,  333,  339. 

cases  within  the  statutes  enumerated,  333,  334. 

cases  not  within  the  statutes,  335,  336. 

secret  trusts  to  exempt  persons  or  charitable  corporations,  336, 
337. 

when  property  not  liable  passing  under  irrevocable  trust  deed, 
337. 

the  law  when  the  deed  goes  into  effect  should  govern,  338. 

similarity  of  Pennsylvania  and  New  York  statutes,  337,  338. 

when  taxable  under  New  York  act  of  1892,  338. 


002  INDEX. 

[Keferences  are  to  Pages.] 

GIFTS  INTER  VIVOS  AND  CAUSA  MORTIS— Continued, 
when  made  in  contemplation  of  death  of  the  grantor,  338. 
or  intended  to  take  effect  in  enjoyment  after  death,  338. 
gift  causa  mortis  of  a  promissory  note  taxable,  338. 
gift  causa  mortis  of  bank  books  taxable  in  Re  Edwards,  338,  339. 
New  York  statute  construed,  338,  339. 
rule  under  act  of  1892  as  to  grants  and  gifts  causa  mortis,  In  re 

Seaman,  32,  38,  SO,  22S,  248,  254,  275,  280,  282,  285,  288,  304, 

307,  308,  309,  352,  Addenda. 

GLADSTONE, 

connection  of,  with  succession  duty  act,  9. 

GOOD  FAITH, 

appraisement  made  in,  when  conclusive,  258. 
acts  of  executor  done  in,  justifies  payment  of  legacies  without 
deduction,  376. 

GOVERNMENT  BONDS, 

tax  upon  passing  of,  constitutional,  59-61. 

taxation  of,  does  not  conflict  with  federal  law,  60. 

property  tax  upon,  when  void,  59  (note  122). 

statute  of  West  Virginia  as  to  public  securities,  59  (note  122). 

of  foreign  decedents,  exempt  in  Pennsylvania,  177. 

GOVERNMENTS  AND  MUNICIPALITIES, 
legacies  to,  may  be  taxed  by  states,  62,  63. 

GRADUATION, 

principle  of,  in  taxation  of  inheritances,  10  (note),  75. 
comments  of  Gov.  Hill  upon,  20  (note). 

GRANDMOTHER, 

when  not  next  of  kin,  132. 

GRANTOR. 

transfers  by,  to  evade  tax,  327  et  seq. 

GRATUITY, 

legacy  as,  taxable,  344,  347. 

GRAVES, 

bequest  to  keep  in  order,  113. 

GREECE, 

succession  taxes  in,  2. 


INDEX.  603 

[References  are  to  Pages.] 

GUARDIAN  AD  LITEM, 

when  executor  not  liable  to,  for  taxes  paid  for  infant,  382. 

GUATEMALA, 

succession  taxes  in,  2. 

H 

HEARING, 

right  to  notice  and,  52,  358,  359,  400. 
effect  of  failure  to  give,  401. 

HEIRS, 

rights  of,  where  state  fails  to  enforce  lien,  408. 

liability  of,  to  executor,  etc.,  377-379. 

liability  of,  to  administrator  for  tax  paid,  381. 

liability  of,  for  tax  on  real  estate,  381. 

when  share  of,  "free"  or  "clear"  of  tax,  378,  379. 

of  resident  decedents,  148  et  seq. 

of  nonresident  decedents,  159  et  seq. 

HILL,  GOVERNOR, 

messages  to  legislature  on  tax,  20,  21  (note). 

HISTORY, 

of  inheritance  and  succession  taxes,  2. 

HOLLAND, 

succession  taxes  in,  2. 

HOMES, 

when  not  almshouses,  107. 

for  the  poor,  exemption  of,  92,  97. 

for  seamen,  exemptions  of,  97. 

HOSPITALS, 

exemption  of,  84,  97,  102. 

when  exempt  as  almshouses,  102. 

HOUSES  OP  INDUSTRY, 
exemption  of,  7,  78,  101. 

HUSBAND, 

see  "Exemptions." 

HUSBAND  AND  WIFE, 

taxation  of  estates  by  entirety  to,  227. 


604  INDEX. 

[References  are  to  Pages.] 


ILLEGITIMATE  CHILDREN, 
liability  of,  to  tax,  130,  131. 

intention  to  relieve  from  tax  to  be  clearly  expressed,  130. 
effect  of  legitimation  by  law,  130. 
under  the  English  law,  131. 
subsequently  legitimated,  rate  of  duty,  131. 
when  chargeable  with  highest  rate  of  duty,  131. 
for  a  review  of  legislation  in  Pennsylvania  upon  the  subject  of. 
130  (note), 
see  "Children." 

ILLINOIS, 

statute  of  1895,  Appendix,  518. 

history  of  tax,  23. 

exemptions  under  statute  of,  90,  91. 

appeals  from  taxing  order  in,  how  and  when  taken,  257. 

IMPOST  OR  EXCISE, 

when  succession  tax  considered  under  federal  law,  43. 

INCOME, 

of  life  tenant  or  annuitant,  tax  payable  out  of,  265,  270. 
use  of  principal  by  life  tenant  to  pay  tax  on,  270,  271. 
when  life  tenant  not  taxed  upon  fund  or,  266,  267. 
corporations  deriving,  liable  to  tax,  83,  84. 
see  "Annuities";    "Life  Tenants." 

INCORPORATED  COMPANIES, 
denned,  97  et  seq. 

INCREASE, 

or  accretions  after  death,  when  tax  not  Imposed  upon,  418,  419. 

INFANTS, 

when  executor  protected  in  paying  tax  on  share  of,  382. 
to  be  represented  by  special  guardian  in  the  proceeding,  256,  258 
(note). 

INFIRMARIES, 

exemption  of,  84. 

INFORMATION, 

when  tax  collected  by,  389. 


INDEX.  b05 

[References  are  to  Pages.] 

INHERITANCE  TAX. 

constitutional,   whether   imposed   on    property   or   the   succession 
thereto,  192  (note), 
see   "Constitutionality." 

IN  PERSONAM, 

liability   in,   see   "Administrators";    "Executors";    "Remedy   and 
Practice." 

IN  REM. 

proceedings  to  collect  tax,  388,  391. 

INSURANCE, 

policies  of,  on  life,  when  taxable  in  New  York,  114,  208,  259,  260. 

bequest  to  mutual  benefit  association  liable,  113. 

money  paid  by  beneficiary  association  to  deceased  member's  next 

of  kin,   113,  114. 
under  the  English  law,  208  (note), 
money  from  English  customs  benevolent  fund  for  widows,  etc., 

not  taxable,  114,  115. 
when  value  of  policies  not  reviewable,  259,  260. 
under  acts  of  congress,  208. 
see  "Policy  of  Insurance." 

INTANGIBLE, 

see  "Tangible  and  Intangible  Property." 

INTEREST, 

on  taxes,  not  implied  at  law,  411. 

added  by  way  of  penalty  for  default,  411. 

interest  under  power  of  appointment,  417. 

effect  of  receipt  for  taxes  upon,  376,  377. 

right  of  state  to,  not  waived  by  receiving  tax,  377,  417. 

when  receipt  for  tax  does  not  estop  state  from  recovering,  417. 

not  affected  by  probate  proceedings,  415. 

interest  and  penalty  for  nonpayment  of  tax,  411  et  seq. 

when  penalty  removed,  interest  charged  from  death,  415. 

rule  as  to  interest  in  New  York  under  Act  1892,  415. 

when  executor  liable  for,  415  (note). 

see  "Penalty";    "Remedy  and   Practice." 

INTER  VIVOS, 

gifts  by,  see  "Gifts  inter  Vivos  and  Causa  Mortis." 


006  INDEX. 

[References  are  to  Pages.J 

INTESTACY, 

heirs,  not  administrator,  liable  to  pay  tax  in  case  of,  372. 

INTESTATE  LAW, 

right  to  take  under,  taxable  as  a  privilege,  5. 

INTESTATES, 

nonresident,  when  taxable,  65  (and  note),  168,  169,  192,  193. 
see  "Nonresident  Decedents";   "Resident  Decedents." 

ITALY. 

succession  taxes  in,  2. 

J 

JOINT  TENANTS, 

liability  of,  to  tax  in  England,  13  (note),  269. 

JUDGMENT,    . 

as  to  appraisement  and  amount  of  tax,  when  final  and  conclu- 
sive, 256  (note),  258. 

JURISDICTION, 

person  or  property  to  be  within  taxing  state,  145,  146. 
of  state  to  tax  estates  of  foreign  decedents,  370,  371. 
when  state  cannot  tax  foreign  real  estate,  143,  152-158. 
no  power  to  assess  nonresidents  personally,  146,  147. 
exclusive,  of  surrogate  to  direct  payment  of  tax,  348,  349,  352, 

354  et  seq.,  394,  395. 
when  supreme  court  in  New  York  has,  353,  395. 
of  surrogate,  to  order  repayment  of  tax,  356. 
tax  to  be  paid  in  county  where  first  acquired,  354. 
see  "Remedy  and  Practice." 

JUSTIFICATION, 

on  part  of  legatee,  for  refusing  to  pay  tax,  392. 

L 

LANDS, 

and  personal  estate,  where  and  bow  appraised,  216-218  et  seq.,  411. 

who  liable  for  tax  upon,  381. 

alien  devisee  of,  cannot  set  up  devise  is  void,  393. 

sold  in  separate  lots,  liability  of,  for  tax,  410,  411. 

lien  of  tax  upon  and  rights  of  purchasers,  407,  410,  392-394. 


INDEX.  607 

[References  are  to  Pages.] 

LANDS— Continued, 

when  sheriff  cannot  pay  succession  tax  on,  393. 

when  taxable  in  equity  as  personalty,  152-15S. 

taxation  of,  where  owned  by  nonresident,  190. 
see  "Foreign  Real  Estate";    "Real  Estate." 
LAW. 

conclusions  of,  under  New  York  statute,  402  (note). 

LAWFUL  OR  LINEAL  DESCENDANTS, 
who  included  within,  132. 

LAYTON, 

on  English  legacy  duties,  11. 

LEASEHOLD  AND  REAL  ESTATE, 

taxed  irrespective  of  owner's  domicile,  168  (note). 

LEGACIES, 

defined,  265,  266,  343  (and  note  292). 

subject  to  tax,  265,  266. 

payable  out  of  income,  are  annuities,  266. 

in  trust  to  carry  on  business  of  decedent,  are  taxable,  266. 

when  legacy  includes  real  estate,  266. 

how  tax  upon  paid  where  residuary  estate  is  insufficient,  267. 

duty  of  appraiser  as  to,  209. 

in  money,  appraisement  of,  not  necessary,  229,  368  (note). 

in  payment  of  debts,  not  appraisable  nor  taxable,  231,  343,  344, 

347. 
to  physician  for  services,  when  not  exempt  as  a  debt,  344. 
of  debt  barred  by  statute  of  limitations,  347,  407. 
when  "free"  or  "clear"  of  tax,  343,  377,  378. 
not  liable  to  tax  when  renounced,  392,  393. 
to  charitable,  religious,  and  other  institutions,  92  et  seq. 
sent  from  abroad,  when  not  taxable,  197. 
to  executors  in  lieu  of  commissions,  when  taxable.  343  (note  291) 

366. 
sums  loaned  by  decedent  to  his  sons,  when  considered  taxable 
as,  346. 
see  "Annuities";   "Exemptions";   "Remedy  and  Practice." 

LEGACY  ACT  OF  CONGRESS, 

when  legacies  not  taxable  under,  14,  144. 
see  "Acts  of  Congress." 


608  INDEX. 

[References  are  to  Pages.] 

LEGACY  DUTY  ACT, 

origin  and  history  of,  in  England,  8,  12. 

exemptions  under,  10,  11,  75,  92,  112. 

doctrine  of  mobilia  sequuntur  personam  under,  regarding  non 

residents,  159  et  seq. 
limited  to  property  within  Great  Britain,  161  et  seq. 
when  English  subjects  dying  abroad  liable  to,  166. 
effect  of  change  of  domicile  under,  158. 
when  property  of  nonresident  liable  to  duty,  164-166. 
when  duty  payable  upon  foreign  real  estate  owned  by  partners, 

162  et  seq. 
real  estate  of  foreigners,  when  liable  to,  165. 
liability  under,  of  assets  sent  to  England,  160,  161. 
authorities  under,  when  rejected  in  United  States,  168-171. 

LEGACY  TAX, 

its  nature  and  constitutionality,  2-5,  29,  BO  et  seq. 
its  theory  discussed,  and  the  tax  defined,  5,  7. 
imposed  upon  privilege  of  inheritance,  etc.,  3-5,  29,  30  et  seq. 
compared  with  ordinary  tax  or  duty,  5,  9,  60. 
not  a  penalty  or  forfeiture,  6,  7,  60  (note  126),  406  (note  109). 
its  success  as  a  means  of  revenue,  11  (note),  12. 
as  a  means  of  revenue  in  the  United  States,  21  (note), 
see  "Constitutionality";  "Legacy  Duty  Act." 

LEGAL  FICTIONS, 

proper  use  of,  concerning  taxation,  195,  196. 

LEGATEES, 

power  of  state  to  tax  legacies  to  resident  or  alien,  64,  145,  148. 

renouncing  legacy,  not  liable,  392. 

proof  of  renouncement,  392. 

legacies  to  nonresident,  133,  159  et  seq. 

as  to  when  duties  are  chargeable  upon  legatee's  income,  380. 

as  to  when  taxes  are  chargeable  against  residuary  legatees,  380 

(note  146). 
defense  of,  upon  proceedings  to  collect,  392. 
tax  primary  charge  upon  interest  of,  377-379. 
where  will  provides  legatee  shall  pay  taxes,  380. 
liability  of,  for  tax,  when  perpetual,  377. 
personal  liability  of,  for  tax,  373,  388,  392. 
when  not  personally  liable  under  acts  of  congress,  373. 


INDEX.  609 

[References  are  to  Pages.] 

LEGATEES— Continued, 

when  liable  for  constructive  possession,  392,  393. 

when  disinherited  son  not  liable,  384. 

effect  of  compromise  by,  with  executors,  under  acts  of  congress 

and  English  law,  384,  385. 
liability  of,  to  executor  for  taxes  paid,  373,  392,  393. 
power  of  surrogate  in  New  York  to  compel  payment  of  tax  by, 

to  executor,  356. 
action  in  assumpsit  against,  by  state,  to  collect  tax,  389. 
contempt  or  attachment  proceedings  against,  356. 
when  shares  of  "free"  or  "clear"  of  tax,  37S,  379. 
entitled  to  notice  and  hearing,  400. 

see  "Legacy";   "Nonresident  Legatees." 

LEGISLATURE, 

see  "Constitutionality." 

LEGITIMATION, 

see  "Illegitimate  Children." 

LENAGHAN,  PATRICK, 
treatise  on  legacy  duty,  11. 

LEX  SITUS, 

as  considered  by  Justice  Gray,  196. 
LIABILITY, 

of  executors,  administrators,  trustees,  legatees,  etc.,  inter  se, 
363,  377  et  seq. 

LIBRARY, 

see  "Exemptions";    "Public  Libraries." 
LIEN, 

defined,  405. 

of  tax  and  its  effect,  405.  411. 

under  English  statutes,  12,  405. 

rights  of  bona  fide  purchasers  protected  from,  405. 

taxes  not  generally,  unless  assessed,  405. 

when  taxes  become  statutory  liens,  405. 

when  statute  to  be  followed  in  enforcing,  3S8. 

under  acts  of  congress,  373,  38S,  410. 

under  New  York  statute,  405,  406. 

under  Illinois  statute,  406. 

when  perpetual,  against  legatees,  etc.,  377,  407. 

LAW  INHEK-  39 


610  INDEX. 

[References  are  to  Pages.] 

LIEN— Continued, 

to  what  it  attaches,  407. 

under  Pennsylvania  statutes,  232,  406  et  seq. 

effect  of  neglect  to  enforce,  408. 

effect  of  sale  of  land  where  tax  is  a,  393,  408,  409. 

as  to  purchasers  of  real  estate,  377,  393. 

rights  of  bona  fide  purchasers,  408. 

right  of  vendee  paying  tax,  409,  410. 

when  presumed  to  be  paid  as  to  heirs,  etc.,  409. 

LIFE  ESTATES, 

and  terms  of  years,  appraisement  of,  under  New  York  statute, 

224  et  seq. 
appraisement  of,  in  Connecticut,   Maryland,  Massachusetts,  and 

Pennsylvania,  225,  22G. 
duty  of  surrogate  and  appraiser  as  to,  206,  209,  225. 
liability  of,  to  tax,  224,  225,  264. 
constitutional  rule  as  to  valuation  of,  224  (note), 
see  "Appraisement";    "Life  Tenants." 

LIFE  TENANTS, 

when  and  how  tax  payable  by,  265,  270,  271. 

right  of,  to  use  fund  free  from  tax,  265. 

tax  to  be  upon  clear  value  of  interest  at  testator's  death,  265,  266. 

tax  to  be  assessed  and  paid  at  once,  271  (note). 

when  not  liable  for  tax  upon  contingent  annuities,  266,  268. 

bequest  to  widow  for  life  or  until  she  marries,  not  taxable,  268, 
269. 

when  estate  to  husband  and  wife  by  the  entirety  taxable  during 
husband's  life,  269. 

liability  of  joint  tenants  in  England,  269. 

relative  rights  of,  and  remainder-man,  270. 

and  remainder-man  pay  tax  separately,  270. 

where  life  interest  of,  is  exempt,  whole  tax  payable  by  remain- 
derman, 271,  272. 

rule  as  to,  and  remainder-man  paying  tax,  differ  in  New  York 
and  Pennsylvania,  271. 

when  remainders,  tax  payable  out  of  principal,  271,  272. 

when  remainder-man  may  anticipate  tax,  271.  272. 

when  life  estate  not  ended,  no  assessment  or  tax  on  remainder, 
271,  272. 


INDEX.  Gil 

[References  are  to  Pages.] 

LIFE  TENANTS— Continued, 

devise  of  fee,  and  then  of  life  estate,  fee  taxable,  272. 

how  value  of  life  tenant's  interest  ascertained  in  Massachusetts, 
272. 

tax  on  remainder  payable  out  of  the  principal,  272. 

power  of  disposition,  remainder  not  appraisable  or  taxable,  228, 
242,  243,  268,  269,  339,  325. 

liability  of,  for  delay,  265. 

where  life  tenant  accelerated  the  succession  with  remainder- 
man, all  tax  payable,  275. 

life  tenant  directed  to  pay  tax  on  legacies,  326. 

legacy  to  wife  for  her  support  and  for  charitable  purposes,  tax 
upon,  326. 

confirmation  of  appraiser's  report  not  postponed  for,  263. 

LIMITATIONS, 

see  "Remedy  and  Practice";   "Statute  of  Limitations." 
LIMITED   PARTNERSHIP, 

when  deceased  nonresident's  interest  in,  taxable  in  Pennsylvania, 
179. 

LINEAL  AND  LAWFUL  DESCENDANTS, 

who  included  within,  132. 

taxed  in  New  York,  Ohio,  and  Illinois,  81,  88-90,  132. 
in  New  Jersey,  132. 

when  brothers  and  sisters  and  children  exempt,  in  Pennsylvania, 
133. 

LINEAL   CONSANGUINITY, 

rules  relating  to,  133  (note). 

LITERARY    CORPORATIONS, 

exemption  of,  84. 

when  not  exempt  as  incorporated  companies,  98. 

LITIGATION, 

effect  of,  upon  penalty  for  delay,  413,  414,  415,  416. 

LODGING, 

when  institution  providing,  exempt  as  almshouse,  97,  102. 

LOTS, 

sold  separately,  how  tax  paid  upon,  410,  411. 
see  "Lands";    "Real  Estate." 


612  INDEX. 

[References  are  to  Pages.] 

LOUISIANA, 

tax  in,  considered,  16. 

history  of  tax  in,  16. 

taxing  legacies  to  foreigners,  when  valid,  58,  133. 

when  acts  of,  do  not  conflict  with  federal  treaty,  58. 

M 

MAINE, 

statute  of,  21,  484. 

act  of,  held  constitutional,  36. 

exemptions  under  statute  of,  87-140. 

MANDAMUS, 

against  county  treasurer  to  compel  payment  of  appraiser's  fees, 
209. 

MANITOBA, 

history  of  tax  in,  27. 

MARKET  AND  FAIR  MARKET  VALUE, 

property  to  be  appraised  at  its,  216,  218,  222-224. 

MARYLAND, 

statute  of,  16,  So,  503. 
tax  in,  considered,  16. 
gift  of  freedom  to  a  slave  taxed,  17  (note), 
exemptions  under  statute  of,  85. 
method  of  valuation  of  property  in,  226. 
appraisement  of  remainders  in,  231. 
assumpsit  by  state  against  legatee,  389. 
taxation  of  nonresident  in,  167,  170,  191. 
retroactive   exemptions  in,   54. 

MASSACHUSETTS, 

statute  of,  22,  25,  Appendix,  477. 

tax  in,  considered,  22. 

its  constitutionality,  35. 

constitutional  as  a  tax  on  a  commodity,  40. 

exemptions  under  statute  of,  88. 

MASSES, 

legacies  for,  when  not  exempt,  92,  112,  113. 

when  legacies  for,  exempt  as  part  of  funeral  expenses,  113. 

payment  of  tax  where  bequest  for,  void,  113. 


INDEX.  613 

[References  are  to  Pages.] 

MAXIMS, 

"In  lictione  juris  semper  sequitas  existat,"  196. 
"Mobilia  sequuntur  personam,"  147,  148,  159,   160,  164,  167,  195, 
196. 

MAYOR,  ALDERMEN,  AND  COMMONALTY  OF  CITY  OP  NEW 
YORK, 
legacy  to,  taxable,  63. 

MINNESOTA, 

constitutional  amendment  allowing  tax,  24,  40,  91. 

MISSIONARY  SOCIETIES, 

exemption  of  in  New  York  and  Connecticut,  83,  84,  86. 
board  of  foreign  missions  not  exempt  in  New  York,  99. 
Paulist  Fathers  not  exempt,  106. 

MISTAKE, 

second  appraisement  allowed  upon,  258,  259,  262. 
effect  of,  upon  appraisement,  258,  259. 
mutual,  of  register  and  executor,  376. 
effect  of,  upon  receipt  for  taxes,  376,  377,  399. 

MOBILIA  SEQUUNTUR  PERSONAM, 

maxim  of,  based  upon  comity  between  nations,  169  (note). 

maxim  criticised  by  Comstock,  C.  J.,  and  Justice  Gray,  195,  196. 

the  English  rule  as  to,  159,  161,  165. 

first  application  of  doctrine  under  legacy  act,  161. 

considered  under  the  succession  act  as  to  nonresidents  and  aliens, 
147,  159,  163,  164. 

the  rule  as  to,  criticised,  160,  164,  195,  196. 

applied  to  nonresidents  by  Jessel,  M.  R.,  164. 

power  of  parliament  to  tax  nonresidents  conceded,  163,  164. 

when  applied  to  property  of  resident  decedents,  64,  148. 

when  rejected  on  grounds  of  public  policy,  167,  172,  195,  196. 

when  not  applicable  to  inheritance  tax,  66  (note),  195,  196. 

in  New  York  applicable  to  bonds  and  stocks  of  foreign  corpora- 
tions, 16S. 

when  fiction  of,  to  prevail,  66  (note),  148. 

fiction  rejected  in  many  American  states,  167,  168,  169  et  seq., 
195,  196. 

as  applied  to  tangible  and  intangible  property,  167,  16S,  172. 


614  INDEX. 

[References  are  to  Pages.] 

MOBILIA  SEQUUNTUR  PERSONAM— Continued, 

meaning  of  terms  "tangible"  and  "intangible,"  173  (note), 
restricted  in  Pennsylvania  to  intangible  property  of  nonresidents, 
174. 

MONEY  LEGACIES, 

when  need  not  be  appraised,  229. 

MONEY  PAID, 

liability  of  legatee  to  executor  for,  392. 

action  for,  at  common  law,  against  legatee,  392. 

MONEYED  CORPORATIONS, 

included  as    "incorporated   companies"    when   liable  to  tax,   79 
(note),  98  (note). 

MORTGAGE, 

when  amount  of,  deducted  from  value  of  land  in  fixing  tax,  381. 
of  nonresident,  when  exempt,  177. 

see  "Tangible  and  Intangible  Property." 

MOTHERS, 

exemptions  of,  see  "Exemptions." 

MOTION, 

to  vacate  assessment,  presumption  as  to  notice,  401. 

MUNICIPAL  CORPORATIONS, 
legacy  to,  when  taxable,  63,  119. 
legislature  may  delegate  taxing  power  to,  72. 

MUNRO, 

J.  E.  C,  on  estate  and  succession  duty,  11  (note). 

MUSEUMS   OP  ART  AND  HISTORY, 
when  not  exempt,  99. 

MUTUAL  BENEFIT  ASSURANCE  ASSOCIATION, 
when  legacy  to,  taxable,  113. 
see  "Insurance." 

MUTUALLY, 

acknowledged   relation   of   parent   under   New   York   statute,  82, 

123,  130. 
under  Illinois  statute,  90. 

words  "mutually  acknowledged"  defined,  123  (note), 
facts  necessary  to  constitute,  123. 


INDEX.  615 

[References  are  to  Pages.] 

MUTUALLY— Continued, 

step-parent  does  not  occupy  relation,  123. 

aunt  and  niece  may,  124. 

strangers  may  occupy  relation,  124. 

relation  must  have  existed  10  years,  124,  125. 

ruling  under  Act  N.  Y.  1S92  that  child  must  have  been  illegitimate, 

126,  127. 
ruling  of  Van  Brunt,  P.  J.,  criticised,  127,  128. 
dissented  from,  129. 

MUTUAL  MISTAKE, 

effect  of  tax  receipt  given  by,  376. 
see  "Mistake." 

N 
NATURAL  RIGHT, 

taking  by  will  or  intestate  law  not,  6.    • 

NEGLECT, 

to  pay  tax,  notice  of,  by  county  treasurer,  356,  396. 

to  pay  tax,  effect  of,  356. 

of  remainder-man  to  file  bond,  effect  of,  in  Pennsylvania,  320,  321. 

NEPHEWS, 

see  "Exemptions." 

NEW  JERSEY, 
statutes  of,   22. 

statute  of  1S94,  see  Appendix,  459. 
tax  in,  considered,  22. 
exemptions  under  statutes  of.  SS. 
real  estate  liable  under  act  1894,  22. 

taxation  of  personal  property  of  resident,  where  not  within  the 
state,  151. 

NEW  YORK. 

statutes  of,  from  18S7  to  1895,  see  Appendix,  425,  458. 

history  of  tax  in,   18. 

revenues.  19,  21  (note). 

report  of  Comptroller  Roberts  as  to  revenues,  21. 

nature  of  tax  under  Transfer  Act  1892,  38. 

city  of,  when  legacy  to,  taxable,  63,  119. 

statutes  of,  need  not  state  object  of  tax,  51. 


616  INDEX, 

[References  are  to  Pages.] 

NEW  YORK— Continued, 

messages  on  tax  by  Gov.  Hill,  20,  21  (note). 

preliminary  review  of  early  statutes,  275. 

taxation  and  appraisement  of  remainders  and  future  estates,  243, 

256,  275,  307. 
provisions  of  transfer  tax  of  1892,  279. 

revised  statutes  as  to  vested  and  contingent  estates,  279  (note), 
vested  estates,  282. 
vested  estates  denned,  283  (note), 
contingent  or  future  estates,  when  tax  payable,  285. 
contingent  or  future  estates,  when  not  appraisable  or  taxable, 

296. 
when  such  estates  appraisable  at  death,  299. 
appraisable  and  taxable  when  in  possession  or  enjoyment,  303. 
estates  taxable  under  retroactive  clause  of  Act  1S92,  307-316. 
liability  of  nonresident  decedents  in,  166,  180,  190. 
method  of  valuation  of  life  estates  in,  224,  231. 
transfers  of  stock,  etc.,  in,  by  foreign  executors,  174. 

see   "Constitutionality";     "Exemptions";     "Nonresident   Dece- 
dents";  "Remainders,  Contingent  and  Future  Estates." 

NEW  YORK  CITY, 

when  legacy  to  mayor,  etc.,  of,  taxable,  63,  119. 
institutions  exempt  from  taxation  in,  78  (note), 
list  of  exemptions  by  special  statutes  in,  79  (note),  23. 

NEXT  OF  KIN, 

how  ascertained,  132,  133. 

exemption  of,   132. 

when  grandmother  not  exempt  as,   132. 

not  exempted  where  lineals  are  taxed,  132. 

NIECES, 

exemption  of,  see  "Exemptions." 

NONRESIDENT, 

see  "Constitutionality";    "Nonresident  Decedents." 

NONRESIDENT  DECEDENTS, 

heirs  and  legatees  of,  63,  67,  159  et  seq. 
general  rules  as  to  domicile  and  situs  of,  63,  67. 
conflict  under  statutes  with  reference  to  liability  of,  64,  147,  163, 
165. 


INDEX.  617 

[Roforoncos  arc  to  Pages.] 

NONRESIDENT  DECEDENTS— Continued, 

power  of  legislature  to  tax  legacies  given  by,  65,  133. 

policy  of  states  to  apply  tax  upon,   KIT. 

where  succession  to  property  of  takes  place  for  taxation,  191. 
when  intention  to  tax  to  be  clear,  65,  66,  170,  171. 
no  intention  to  tax  under  acts  of  congress,  158. 
state  no  power  to  tax  nonresident  personally,  146. 
when  tax  to  be  enforced  against  property  itself,  147. 
the  English  rule  of  mobilia  sequuntur  personam,  as  applied  to, 

159  et  seq. 
maxim  first  applied  under  legacy  act  in  1S30,  161. 
tax  applied  to  persons  and  property  limited  to  Great  Britain, 

101,  102. 
no  intention  to  tax  in  England,  103. 
the  rule  criticised  and  rejected  by  American  cases,  159  (note), 

100. 
conflicting  decisions  as  to,  under  legacy  and  succession  acts, 

103,  105. 
English  rule  criticised  by  Jessel,  M.  R.,  164. 
liability  to  legacy  duty  determined  by  domicile,  163. 
securities  not  taxable  against,  165,  166. 
mobilia  sequuntur  in  American  states  as  to,  160,  195,  196. 
rule  as  to  taxation  of  in  North  Carolina,  in  Alvaney  v.  Powell, 

168,  109. 
English  cases  distinguished  by  Pearson,  J.,  169. 
rule  to  tax  in  Maryland,  170. 

rule  in  New  York  as  to  stocks  and  bonds  of,  171,  and  note. 
French  treaty  with  United  States  does  not  exempt  aliens  in 

New   York,   171,  172. 
when  fiction  rejected  as  to  tangible  and  intangible  property  of, 

1(57.  10S,  172,  174,  195,  190. 
tangible  and   intangible  property  of  taxed  in   Connecticut, 

Massachusetts,  Ohio,  and  Maine,  172. 
tangible  and  intangible  property  of,  denned  and  classified,  173 

(note),  174. 
rule  of  United  States  supreme  court  as  to  taxing  securities  of, 

175  (note), 
intangible  property  of,  not  taxable  in  Pennsylvania,  175,  176. 
rule  as  to,  in  Orcutt's  Appeal,  176. 
rule  in  Coleman's  Estate,  177. 


618  INDEX. 

[References  are  to  Pages.] 

NONRESIDENT  DECEDENTS— Continued, 

rule  exempts  bonds  and  stocks  of,  actually  within  state.  177. 
178. 

mortgages  upon  real  estate  not  liable,  177. 

proceeds   of  lands   in   Pennsylvania   belonging  to,    when  not 
taxable,  177,  190. 

interest  in  limited  partnership  of,  when  taxable,  178,  179. 

rule  in  Small's  Estate,  178,  190. 

taxing  stocks  of,  under  new  administration,  179. 

funds  of,  when  distribution  takes  place  in  Pennsylvania,  tax- 
able,  180. 

rule  as  to,  in  New  York,  under  act  of  1885,  180. 

bonds  and  stocks  of,  held  not  liable,  180. 

rule  under  Acts  1887  and  1892,  181. 

rule  in  Romaine's  Case  (Act  1887),  182. 

stocks  and  bonds,  money  in  bank,  taxed,  182. 

opinion  of  A'ann,  J.,  182,  183. 

stocks  and  bonds  of,  in  foreign  corporations,  held  not  liable, 
183,   184. 

act  of  1887,  rule  in  James'  Case  (1894)  183-185. 

objections  to  ruling  in  James'  case,  185,  187. 

rule  as  to  double  taxation,  50,  187,  193. 

right  to  a  legacy  to  nonresident  not  taxable,  187. 

rule  in  Phipps'  Case,  187,  188. 

real  estate  of,  when  taxable  at  situs,  190,  191,  193. 

where  succession  takes  place  for  taxation  of,  191. 

conflict  as  to  liability  of,  190-192. 

taxing  does  not  violate  constitution,  193,  194. 

objections   to  exempting   tangible   or   intangible   property   of, 
under  the  fiction,  194,  195. 

remarks  of  Comstock,  C.  J.,  and  Mr.  Justice  Gray,  upon  fic- 
tion of  mobilia,  196. 

rule  discriminates  against  resident  decedents,  196,  197. 

foreign  legacies,  when  not  taxable,  197. 

where  nonresident   decedent's   debts   exceed  value   of  estate, 
198  et  seq. 
see  "Legacy  Duty  Act";    "Succession  Duty  Act." 

NONRESIDENT  LEGATEES, 

taking  property  from  resident  decedents,  149. 


INDEX.  619 

[References  are  to  Pages.] 

NONRESIDENT  TRUSTEES, 

when  property  held  by,  not  taxable,  198. 

NORTH  CAROLINA, 
tax  in,  considered,  17. 
history  of  tax  laws,  17  (note), 
exemptions  under  statute  of,  86. 
colleges  and  churches  not  exempt,  100. 
appraisement  and  taxation  of  remainders  in,  236. 
property  of  foreign  intestates  in,  167-1G9. 
remedy  under  statutes  of,  to  collect  tax,  389. 

NORTH,  LORD, 

originated  legacy  tax:,  8. 

NOTES, 

see  "Tangible  and  Intangible  Property." 

NOTICE  AND  HEARING, 

right  to,  52  et  seq.,  400,  401. 

of  time  and  place  of  appraisement,  391,  400,  401. 

persons  entitled  to,  to  be  specified  in  order,  400. 

infants  entitled  to,  401. 

rights  of  purchasers  without,  405,  406. 

effect  of  decree  made  without,  399. 

tax  void  where  persons  not  notified,  359,  375,  376. 

when  surrogate  presumed  to  have  given,  401. 

from  county  treasurer  to  district  attorney,  396,  397. 

NOVA  SCOTIA, 

history  of  tax  in,  27. 

o 

OBJECT  OF  TAX, 

when  law  not  void  as  not  stating,  51. 

OHIO, 

statutes  of,  4S9-497. 

history  of  tax  in,  22. 

exemptions  under  statute  of,  89. 

tax  on  lineal  heirs  held  unconstitutional,  48,  70. 

OMISSION, 

effect  of,  upon  appraisement,  260. 


620  INDEX. 

[References  are  to  Pages.] 

ONTARIO, 

tax  in,  explained,  26. 

OPTION, 

when  remainder-man  to  exercise,  as  to  payment,  271. 
ORDER, 

confirming  report  of  appraiser,  when  conclusive,  258, 

ORPHAN  ASYLUMS, 

exemption  of,  92,  101,  111. 

ORPHANS, 

exemption  of  societies  supporting,  101. 

ORPHANS'  COURT, 

proceedings  in  Pennsylvania  to  collect  tax,  362,  390. 

P 

PARENT, 

by  nature,  when  exempt,  123. 

facts  necessary  to  constitute  mutually  acknowledged  relation  of, 
123  et  seq. 
see   "Exemptions";    "Mutually  Acknowledged  Relation." 

PARLIAMENT, 

power  of,  to  tax  nonresident  decedents,  159  et  seq.,  163  et  seq. 
PARTIES, 

rights  of,  to  notice  and  hearing,  350,  400  et  seq. 

citation  of,  in  proceedings  to  collect  tax,  395,  396. 

district  attorney  as  a  party  upon  accounting,  397. 
see  "Remedy  and  Practice." 

PARTITION   PROCEEDINGS, 

sums  realized  in,  do  not  prevent  appraisement,  217. 

claim  for  tax  in,  389. 

liability  of  money  paid  legatee  in,  393. 

alien  devisee  receiving  money  in,  when  estopped,  393. 

no  liability  of  purchaser  at,  for  taxes,  393. 

infant's  share  in,  when  taxed,  143. 

PARTNERSHIP, 

liability  of  deceased  nonresident  in,  limited  for  tax  upon  property 
in  Pennsylvania,  179. 


INDEX.  621 

[References  are  to  Pages.] 

PARTNERSHIP— Continued, 

limited,  where  property  of  deceased  member  taxable,  385. 
when  interest  of  decedent  in,  not  liable  to  penalty,  414. 

PASTOR, 

bequest  to,  for  masses,  113. 

PAULIST   FATHERS, 
bequest  to,  taxable,  106. 

PAYMENT  OF  TAX, 

how  secured  in  England,  12. 

when  state  entitled  to  immediate,  320,  321. 

when  avoided  by  bona  fide  transfer,  329. 

power  of  district  attorney  to  compel,  356  et  seq. 

district  attorney  not  entitled  to,  on  accounting,  397. 

when  suiTogate  will  not  compel,  355,  360. 

when  possession  accrues,  rule  as  to,  in  Pennsylvania,  325. 

rights  of  remainder-man  as  to,  in  Pennsylvania,  319. 

by  remainder-man,  in  anticipation,  323. 

upon  contingent  annuities,  302. 

in  what  county  made,  354,  35S,  362. 

constructive  after  42  years,  as  to  heirs,  408. 

when  presumed,  408. 

when  receipt  for  taxes  not,  399. 

delay  in,  when  excused  as  to  penalty,  411  et  seq. 

erroneous,  when  tax  to  be  refunded,  403  et  seq. 

PENALTY, 

legacy  tax  is  not  a,  7,  406. 

and  interest  for  unpaid  taxes,  411  et  seq.,  415  (note). 

resistance  to  payment  of  tax,  cause  for,  412,  413. 

when  statutes  imposing,  strictly  construed,  411. 

suits  to  enforce,  cannot  be  brought  in  foreign  states,  411. 

foreigners,  when  not  relieved  from,  415. 

when  nonresident's  estate  not  liable  for,  411  (note  139). 

when  it  runs  against  remainder-man,  412. 

when  executor  or  administrator  to  pay,  374. 

imposed  upon  executor  for  failure  to  sell  seat  in  stock  exchange, 

417. 
not  imposed  where  property  involved  in  partnership,  414,  415. 
burden  of  proof  to  relieve  from,  414. 


622  INDEX. 

[References  are  to  Pages.] 

PENALTY— Continued, 

not  exacted  where  failure  to  pay  tax  caused  by  legal  doubt,  412. 
relieved   by   unavoidable  cause  of   delay   in  settling  estate,   413 

et  seq. 
relief  from,  under  New  York  act  of  1892,  416. 
where  relieved  from,  interest  runs  from  death,  415. 
relieved  by  necessary  litigation,  416. 
no  limit  of  time  as  to,  405,  406. 
when  action  to  recover  back  where  illegally  exacted  not  barred, 

410   (note), 
when  action  to  recover  not  barred  by  statute,  413  (note), 
under  Pennsylvania  statutes,  412. 
see  "Remedy  and  Practice." 

PENNSYLVANIA, 

statute  of  1S87  and  amendments  to  1895,  467,  476,  Appendix- 
history  of  collateral  inheritance  tax  in,  15. 
successful  means  of  revenue,  16,  21. 
table  of  annual  income  from  tax,  21. 
exemptions  under  statutes  of,  84. 
small  estates,  142. 
state,  expert  appraiser  in,  241,  475. 
acts  of,  not  ex  post  facto,  56. 
valid  where  retroactive,  54  et  seq. 
act  of  1S87,  objections  as  to  title,  44  (note  48). 

when  void  as  direct  tax,  43,  44. 
when  state  no  power  to  tax  foreign  real  estate,  43,  232  (note), 
procedure  by  bill,  under  acts  of,  to  collect  tax,  390. 
jurisdiction  of  orphans'  court,  390. 
distinction   between   tangible   and   intangible   property,   148,    173 

(note), 
intangible  property  of  nonresident  not  taxed  in,  173  (note),  176, 

177. 
taxation  of  nonresident's  property  in,  179,  180. 
transfers  of  stock  in,  by  foreign  executors,  176. 
method  of  valuation  of  life  estates,  annuities,  etc.,  226. 
appraisement  of  remainders  in,  232. 
taxation  of  remainders  and  future  estates  in,  316. 
liability  of  remainder-man  under  Act  1887,  318.  320,  321. 
effect  of  act  of  1S87  upon  prior  laws,  317  (note). 


INDEX.  623 

[References  are  to  Pages.] 

PENXSYLVANIA-Continued, 

provision  of  constitution  of,  as  to  exemptions,  84  (note), 
colleges  and  public  charities  in,  not  exempt.  100,  111. 
charitable  institutions  making  profit,  100. 
state  certificates  not  taxable,  61. 

see  "Exemptions";    "Nonresident  Decedents";    "Remedy  and 
Practice." 

PERSONAL  LIABILITY, 

see    "Administrator";     "Executor";     "Legatee";     "Remedy    and 
Practice";    "Trustee." 

PERSONAL  PROPERTY, 

devolutions  of,  first  taxed,  9,  74. 

not  taxable  under  acts  of  congress  where  proceeds  of  real  estate. 

144. 
assigned  to  devisee  in  partition  proceedings,  liable,  393. 
lien  of  tax  upon,  405. 

see   "Nonresident  Decedents";    "Property";    "Resident  Dece- 
dents." 

PERSONAL  PROPERTY  TAX, 

requisites  to  jurisdiction,  145,  146,  148. 

has  no  application  to  inheritance  tax,  185,  192  (note). 

criticised,  4. 

PERSONALTY, 

liability  of  partnership  property  as,  162. 
when  not  liable  for  mortgage  debt,  381. 
real  estate,  when  taxable  as  personalty,  152  et  seq. 
appeal  from  appraisement  of,  by  administrator,  403. 
see  "Equitable  Conversion." 

PETITION, 

of  district  attorney,  see  "District  Attorney";    "Forms." 

PITT,    WILLIAM, 

attempt  of,  to  impose  succession  tax,  9. 

POLICY  OF  INSURANCE, 

when  appraisable  and  taxable,  114,  208,  and  note  17. 
see  "Insurance." 

POLL  TAX, 

legacy  tax  not,  46. 


624  INDEX. 

[References  are  to  Pages.] 

POOR, 

societies  aiding,  when  almshouses,  101  et  seq. 

POORHOUSES, 
defined,  102. 
exemption  of,  97. 
see  "Almshouse." 

PORTUGAL, 

succession  taxes  in,  2. 

POSSESSION, 

of  remainder-man  under  Pennsylvania  statute,  when  taxable,  320, 
322,  325. 

POWER  OF  DISPOSITION, 

general  provisions  of  Rev.  St.  N.  Y.  as  to,  286  (note  98). 

what  constitutes,  in  life  tenant,  286  (note  99). 

when  remainder  not  taxable  where  life  tenant  has,  242,  243,  325. 

where  widow  has,  connected  with  a  trust  for  charitable  uses, 

243,  325,  326. 
as  to  those  which  are  discretionary,  287  (note). 

POWERS  OF  APPOINTMENT, 

property  passing  under,  to  trustee,  taxable  four  years  after  death. 

249,  250,  305,  339,  340. 
when  property  passing  under,  to  lineal  descendants,  not  liable, 

133,  339. 
property  passing  under,  to  collaterals,  when  taxable,  133. 
appraisement  of  property  passing  under,  where  exercised  after 

death,  249,  250. 
effect  of  improper  exercise  of,  339. 

liability  of  executor  holding  trust  fund  for  tax  under,  3S0. 
by  will  in  life  tenant,  133. 

as  to  discretion  of  trustees  under,  in  England,  275,  339  (note),  342. 
taking  effect  after  passage  of  law,  315,  342. 
of  property  under  an  imperative  special  power,  342. 

PRACTICE, 

see  "Remedy  and  Practice." 

PRESUMPTION, 

of  survivorship,  where  death  by  drowning,  133  (note). 

as  to  notice  of  assessment,  401. 

as  to  payment  of  tax,  in  favor  of  purchasers,  406. 


INDEX.  625 

[References  are  to  Pages.] 

PRIESTS, 

legacies  to,  for  masses,  92. 

PRINCIPAL, 

when  used  by  life  tenant  to  make  up  income,  remainder  not  tax- 
able, 287. 

PRIVATE  PROPERTY, 

tax  not  considered  as  a  taking  of,  51. 

PRIVILEGE, 

legacy  tax  is  upon,  30. 

power  of  legislature  to  tax,  29. 

PROBATE  PROCEEDINGS, 

when  tax  on,  void,  47  (note  64). 

PROCEDURE, 

see  "Remedy  and  Practice." 

PROCEEDS, 

of  foreign  real  estate,  when  taxable,  152  et  seq. 

PROFITS, 

corporations  making,  liable  to  tax,  79  (note  23),  84,  100. 

PROMISSORY  NOTE, 

transferred  inter  vivos,  when  not  taxable,  335,  336. 
taxable  when  bequeathed  to  debtor,  346. 

PROPER  PARTY, 

when  district  attorney  deemed,  upon  accounting,  397. 

PROPERTY, 

or  person,  confers  jurisdiction  to  tax,  145,  146. 
stocks  and  shares  in  foreign  governments  taxable,  166. 
foreign  bonds  and  securities  liable  to  probate  duty,  166. 
tangible,  of  nonresident  decedents,  when  liable,  65,  66. 
"tangible"  and  "intangible"  defined,  173,  174  (notes). 
foreign  real  estate,  when  taxable,  67,  152  et  seq. 
see  "Nonresident  Decedents." 

PROPERTY  TAX, 

inheritance  and  legacy  tax  not,  41,  43. 
exemptions  from,  do  not  relieve  from  legacy  tax,  94. 
legacy  tax  on  government  bonds  and  state  securities  not  a,  59 
et  seq. 
law  inher.— 40 


626  INDEA. 

[References  are  to  Pages.] 

PROPERTY  TAX— Continued, 

on  government  bonds,  when  void,  59,  60  (note). 

tax  on  legacy  to  federal  government  not,  43. 

not  a  tax  on  real  or  personal  property  in  Maine,  43. 

PUBLIC  CHARITY, 

when  not  exempt  from  tax  in  Pennsylvania,  111  (note), 
colleges,  when  not  exempt  from  tax,  100,  111. 

PUBLIC  LIBRARIES, 

exemption  of,  92,  95  (note),  97. 

public  library  in  city  of  Brooklyn  exempt,  99. 

when  geographical  societies  are  exempt  as,  112. 

PUBLIC  OFFICERS, 

compromises  of  tax  with,  by  executors  and  legatees,  383,  385. 

PUBLIC  POLICY, 

as  to  taxing  nonresidents,  148. 

PUBLIC  PROPERTY, 

exemption  of,  in  Pennsylvania,  84  (note). 

PUBLIC  PURPOSES, 

exemptions  of  corporations  for,  in  Connecticut,  86. 

PUBLIC  WORSHIP, 
defined.  111,  112. 
exemption  of  houses  of,  97,  101,  105. 

PURCHASER, 

rights  of,  in  Pennsylvania,  under  judicial  sales,  408,  409. 

PURCHASERS  OF  REAL  ESTATE, 

statute  of  limitation  in  favor  of,  236,  374,  377,  406. 
presumption  as  to,  where  state  neglects  to  enforce  lien,  260,  405 

et  seq. 
when  receipt  for  tax  protects,  263,  374,  377,  394,  406. 
remedy  of,  upon  covenant,  against  vendor  for  taxes  paid,  394. 
presumption  of  payment  of  tax  in  favor  of,  406  et  seq. 
rights  of,  under  English  statutes,  377  (note  150),  405. 
when  bona  fide  purchasers  protected  against  future  claims,  406. 
when  not  personally  liable  for  tax,  393,  410. 
of  land  sold  in  separate  lots,  410,  411. 

see  "Real  Estate";  "Remedy  and  Practice." 


INDEX.  627 

[References  are  to  Pages.] 


QUEBEC, 

history  of  tax  in,  26. 


Q 


R 
BATE  OP  TAX, 

theory  of  graduation  as  to,  10. 

remarks  of  Mills  upon  graduated  tax,  10  (note  33). 

theory  of  Mr.  Justice  Brewer  that  tax  should  be  graduated,  2 

(note  2). 
under  Roman  law,  7. 

English  law,  10,  12  (note). 

acts  of  congress,  14. 

what  statutes  imposed,   419. 

REAL  ESTATE, 

when  included  in  word  "legacy,"  266. 

when  conveyance  of,  not  a  gift,  bequest,  or  endowment,  100. 

appraisement  of,  in  Pennsylvania  and  Maryland,  205. 

appraisement  of,  in  New  York,  205,  217,  218. 

appraisement  of,  under  Act  N.  Y.  1891,  209,  210. 

beyond  state,  when  not  taxable,  67,  143,  156,  157,  371. 

when  taxable  at  situs,  143,  167,  192. 

taxed  irrespective  of  domicile  of  owner,  165,  168  (note). 

foreign,  when  not  taxable  at  decedent's  domicile.  371,  372. 

foreign,  when  proceeds  of,  not  taxable,  371,  372. 

as  to  taxation  of,  in  Pennsylvania,  as  against  nonresidents,  157 

(note), 
foreign,  owned  by  partners,  considered  personalty  in  England, 

153,  162,  163. 
foreign  and  domestic,  when  taxed  as  personalty  under  doctrine 

of  equitable  conversion,  67,  152,  158,  371. 
when  not  taxable  as  personalty  in  New  York,  143,  153,  154,  155, 

371. 
when  mortgage  on,  will  be  deducted  in  fixing  value,  381. 
liable  under  Act  N.  J.  1894,  22. 
legacies  payable  from,  when  not  taxable  under  acts  of  congress. 

144. 
when  executor  or  administrator  not  liable  for  tax  on,  372,  381. 


628  *  INDEX. 

[References  are  to  Pages.] 

REAL  ESTATE— Continued, 

executor  no  right  to  pay  tax  on,  out  of  personalty,  372. 
liability  of  executor  upon  land  devised  to  himself,  372. 
liability  of  heir  or  legatee  for  tax  upon.  372,  381. 
infant's  share  in  partition,  when  taxable  as  personalty,  143. 
lien  on,  under  English  statutes,  405. 

under  New  York  statutes.  405,  406. 

of  five  years  upon,  in  Pennsylvania,  406. 

on,  under  Illinois  statute,  406. 

of  tax,  as  to  bona  fide  purchasers  of,  405^07  et  seq. 

of  tax,  when  presumed  to  be  paid,  408. 
appeal  by  heir,  when  tax  upon,  403. 

see  "Foreign  Real  Estate" ;  "Remedy  and  Practice." 

REAL  PROPERTY, 

succession  to,  when  first  taxed  in  England,  8. 

RECEIPT, 

when  necessary  for  executor's  discharge  from  liability,  364,  375. 
"in  full"  for  taxes,  given  by  register,  effect  of,  upon  executor,  376. 
when  not  a  bar  to  recovery  of  tax  and  interest,  376,  377,  399. 
no  protection  where  procured  by  fraud  or  mistake,  377,  399. 
effect  of,  upon  proceedings  of  district  attorney,  where  property  in 

different  counties,  399  (note  69). 
county  treasurers,  effect  of,  upon  bona  fide  purchaser,  263,  362 

(note),    394,    406. 
must  designate  land  on  which  tax  paid,  394. 
see  "Remedy  and  Practice." 

REFERENCE, 

power  of  surrogate  to  order,  upon  disputed  questions,  356,  401. 

REFORMATORIES, 

exemption  of,  in  New  York,  78. 

REFUND  OF  TAX, 

when  debts  accrue  after  payment,  202. 
see  "Remedy  and  Practice." 

REFUSAL, 

to  pay  tax,  effect  of,  upon  district  attorney,  359,  396. 
effect  of,  upon  costs  of  district  attorney,  360  (note  59). 
notice  of,  by  county  treasurer,  359,  396. 


INDEX.  629 

[References  are  to  Pages.J 

REFUSAL— Continued, 

or  neglect,  when  demand  necessary  to  show  under  acts  of  con- 
gress, 359  (note  52). 

REGISTER  OP  WILLS, 

duties  of,  iu  Pennsylvania,  233,  3G2  (note). 

may  by  bill  or  petition  compel  payment  of  tax  in  orphans'  court, 
362,  390. 

method  of  ascertaining  value  of  estates  in  remainder,  233,  242 
(note). 

liability  of  sureties  of,  362  (note). 

effect  of  receipt  in  full  for  taxes,  362  (note). 

may  appoint  expert  appraisers,  to  be  approved  by  auditor  gen- 
eral, 210;   Appendix,  475. 

RELEASE, 

taxes,  power  of  state  to,  54,  55,  309. 

by  will,  of  legacy   or  annuity  from  tax,  makes  executor  liable, 

378,  379. 
to  defeat  tax,  when  within  statute,  333,  334. 

RELIGIOUS  CORPORATIONS, 

not  exempt  in  England,  106. 

exemption  of,  in  New  York,  83,  92,  93  (note),  98-100. 

exemption  of,  under  New  York  acts  of  1890  and  1892,  83,  95. 

when  not  exempted  as   "incorporated  companies,  '  93,  98,  99. 

when  not  exempted  under  the  act  of  1892,  99. 

boards  of  foreign  missions  and  foreign  corporations  not  exempt, 

99,  106. 
legacy  to  church  liable,  105,  106. 
when  church  exempt,  112. 
legacy  to  "Paulist  Fathers"  liable,  106. 
Young   Men's  Christian  Association   liable,    111. 
school,  to  be  exempt,  must  belong  to  a  religious  society,  112. 
public  charities  not  exempt  in  Pennsylvania,  100. 
exemption  of,  in  Massachusetts,  88. 
exemption  of,  in  Connecticut,  86,  96. 

New  Jersey,  88. 
liable  in  North  Carolina  and  Virginia,  100. 
What  included  under,  92. 

see  "Exemptions";   "Masses." 


630  INDEX. 

[References  are  to  Pages.] 

RELIGIOUS  WORSHIP, 

places  of,  when  exempt,  92,  98,  100. 

REMAINDER-MAN, 

when  to  have  immediate  appraisement  in  Pennsylvania,  237,  239, 

240. 
relative  rights  of,  and  life  tenant,  270  et  seq. 
not  affected  by  tax  due  by  life  tenant,  265,  270. 
rule  as  to  payment  of  tax  where  life  tenant  exempt,  270,  271. 
tax  of,  payable  on  principal  when  life  estate  ended,  270,  271. 
liability  of,  where  life  tenant  has  power  of  disposition,  228,  242, 

243,  268,  269,  339. 
when  to  have  possession  in  order  to  be  taxable,  272. 
may  anticipate  payment  of  tax,  238,  271,  272. 
advantage  to,  in  paying  tax  in  anticipation,  in  Pennsylvania,  242 

(note),  271,  272. 
tax  upon,  when  estate  vests  in  possession,  272. 
rights  of,  under  Pennsylvania  acts  of  1850  and  1855,  236,  237,  240. 
liability  of,  under  Pennsylvania  act  of  1887,  238,  240. 
conditional  bond  to  be  given  by,  301  (note),  347. 
how  tax  on  paid  by,  in  Massachusetts,  272. 
under  New  York  statutes,  279-281. 

see  "Life  Tenants";    "Remainders,  Contingent  and  Future  Es- 
tates." 

REMAINDERS,    CONTINGENT   AND   FUTURE   ESTATES, 
what  words  sufficient  to  include  remainder,  319. 
life  estates,  annuities,  legacies,  and  joint  tenancies,  264,  269. 
relative  rights  of  life  tenant  and  remainder-man,  270,  273. 
England, 

remainders,  contingent  and  future  estates  in,  273,  274. 

interests  taxable  under  acts  of  Victoria,  273. 

how  duties  paid  where  estate  is  accelerated,  273. 

value  of  contingent  interest,  how  made,  274. 

executor  allowed  to  commute  duty  on,  274  (note),  273  (note  52). 
acts  of  congress, 

remainders  not  taxable  until  they  vested  in  possession  or  en- 
joyment, 274. 

word  "succession"  defined,  274. 

succession,  when  real  estate  included  within,  274. 


INDEX.  G31 

[References  are  to  Pages.] 

REMAINDERS,  CONTINGENT  AND  FUTURE  ESTATES— Cont'd, 

life  tenant  and  remainder,  tax  upon,  where  succession  accel- 
erated, 275. 
under  New  York  statutes  of  L885,  1887,  1892, 

preliminary  review  of  early  statutes  with  reference  to,  275,  278. 

"Contingent  Remainders  and  Vested  Estates,"  by  Austin  Ab- 
bott, Esq.,  275  (note  62). 

vested  and   contingent   estates   defined  under   the   New  York 
Revised  Statutes,  279,  280  (note). 

vested  estates,  In  re  Seaman,  Addenda,  xix. 

estates  included  under  Act  1885,  27(5. 

what  estates  embraced  within,  270. 

rule  in  Re  Stewart  explained  in  Re  Curtis,  about  taxing  con- 
tingent interests,  277  (and  note  07). 

taxing  and  assessing  such  interests  at  death  condemned,  277, 
27S. 

not  to  be  taxed,  but  may    be  assessed  at  death,  277  (note), 
provisions  as  to,  of  transfer  tax  of  1892,  279,  2S0. 

value  of  contingent  estates  under,  how  ascertained,  280. 

state  superintendent  of  insurance,  certificate  of,  when  con- 
clusive as  to  value,  280,  281. 

tax  upon,  generally  due  at  time  of  transfer,  281. 

technical  vesting  not  sufficient  to  warrant  tax  upon,  282,  283. 

executors,  etc.,  may  elect  by  giving  conditional  bond,  281,  285, 
301. 

what  the  words  "estate,"  "transfer,"  "property"  include,  281, 
282. 

decisions  under  these  acts,  282,  316. 

vested  remainders  or  estates,  tax  upon,  due  at  death,  282, 
285. 

"vested  estates"  defined,  2S3  (note). 

general  rule  to  favor  vesting,  283. 

rule  as  to  tenants  by  the  entirety,  husband  and  wife,  284,  303. 

when  a  life  estate  and  vested  remainder  both  taxable,  2S5. 

tax  upon  contingent  estates  not  payable  until  remainders  vest 
in  possession  or  enjoyment,  281,  2S5,  296,  303,  307. 

when  not  taxable  or  appraisable  at  death,  296,  299. 

when  contingent  interest  appraisable  at  death,  299. 

technical  vesting  not  sufficient  to  warrant  tax  upon,  282,  283. 


632  INDEX. 

[References  are  to  Pages.] 

REMAINDERS,  CONTINGENT  AND  FUTURE  ESTATES— Cont'd, 
power  of  disposition,  provision  of  Rev.   St.  N.  Y.  concerning, 

286    (note). 
no  tax  on   remainders   until  power  exercised  by  life  tenant, 

286,  287. 
nor  where  trustee  has  discretionary  power  to  use  money  for 

support  of  life  tenant,  287. 
no  tax  due  where  remainder-man  takes,  providing  he  survives 

life  tenant,  287,  296. 
remainders  not  taxable  until  termination  of  trusts,  Act  1SS5, 

Curtis'  Case,  288,  2S9. 
illustrates  the  hardship  in  taxing  contingent  interests,  290. 
same   rule   followed   regarding   contingent   annuities   and   re- 
mainders under  Act  1887  in  Re  Roosevelt's  Estate,  290-292, 
301. 
rule  followed  in  Re  Hoffman,  Act  1892,  292,  293. 
no  tax  where  life  estate  given  to  widow,  or  until  she  mar- 
ries again,  295. 
no  tax  where  partnership  to  be  continued  until  heirs  come  into 

possession,  295,  296. 
estates  taxable  under  retroactive  clause,  Act  N.  Y.  1892,  307, 
314. 
see  In  re  Seaman,  32,  38,  80.  228,  248,  254,  275,  280,  282. 
285,  288,  304,  307,  308,  309,  352,  Addenda, 
under  the  English  succession  duty  act,  314. 
acts  of  congress,  315,  316. 
vested  and  contingent,  rules  as  to  in  Pennsylvania,  316,  327. 
vested  and  contingent,  under  Pennsylvania  acts  prior  to  1850,  31S, 

319. 
effect  of  act  of  1887  upon  prior  laws,  317  (note). 
tax  upon,  to  be  assessed  at  time  right  of  possession  accrues,  320, 

321,  322. 
when  commonwealth  entitled  to  immediate  payment,  320,  321. 
anticipation  of  payment  by  remainder-man,  323. 
tax  imposed  upon  net  balance  after  all  deductions,  324,  325. 
expense  of  counsel  in  litigation  not  allowed,  324. 
power  of  disposition  by  life  tenant,  when  no  tax  can  be  imposed, 

325. 
life  tenant  directed  to  pay  legacies,  when  taxable,  326. 


INDEX.  633 

[References  are  to  Pages.] 

REMAINDERS,  CONTINGENT  AND  FUTURE  ESTATES— Cont'd, 
legacy  to  wife  for  charitable  purposes,  taxing  amount  necessary 

for  her  support,  o"J<>. 
remainders  under  the  Massachusetts  act,  326. 
see  "Appraisement." 

REMEDY   AND  PRACTICE, 

nature  of  remedy,  actions  and  proceedings  thereunder,  386  et 

seq. 
action  of  assumpsit  in  Maryland,  by  state  against  legatee,  389. 

in  rem  by  state  against  executor,  388-390. 

in  rem  under  acts  of  congress,  388,  389. 

of  debt  against  executor  in  England,  390. 

of  debt  under  Louisiana  statute  against  heirs,  389,  392. 

at  law  by  county  treasurer  in  New  York,  391. 

at  law  by  executor  against  legatee,  392. 

by  purchaser  of  land  against  vendor  for  taxes,  upon  covenant, 
409,  410. 
accounting  of  executors,  state  not  bound  to  wait  for,  387. 

district  attorney  proper  party  upon,  397. 

district  attorney  cannot  enforce  payment  in,  397. 
administrator,  right  of  appeal  by,  403. 

may  have  appraiser  appointed,  397. 
alien  devisee,  cannot  set  up  that  devise  to,  is  null  and  void,  393. 
amendatory  statutes,  effect  of,  upon  adopted  children,  422,  423. 
appeal,  supreme  court  of  United  States,  power  of,  to  review  by, 
402  (note). 

as  to  personalty  and  real  estate,  403. 

by  parties  aggrieved,  401,  402. 

by  administrator,   403. 

by  heir,  from  appraiser's  report,  403. 

from  assessment  of  surrogate,  security  on,  402. 

findings  of  fact,  etc.,  under  New  York  statute,  402  (note). 

from  appraiser's  report,  402,  403. 
appraiser,  order  appointing  should  specify  those  to  be  notified, 
400. 

county  treasurer  may  apply  for.  391. 

proceedings  for,  when  dismissed,  397. 

when  expert  appraiser  appointed  in  Pennsylvania,  210,  475. 


634  INDEX. 

[References  are  to  Pages.] 

REMEDY  AND  PRACTICE— Continued, 

appraisement,    second,    where   property    is   withheld    from   ap- 
praiser, 398. 
assumpsit  by  state  to  recover  tax,  389. 
assessment  order,  when  to  describe  land,  394. 
attachment,  when  executor  liable  to,  for  nonpayment,  391. 
bill  in  equity,  by  attorney  general,  to  collect  tax,  389. 

in  orphans'  court.  Pennsylvania,  to  collect  tax,  390. 

to  recover  tax,  by  register,  in  Pennsylvania,  390. 
certiorari,  remedy  by,  to  correct  assessment,  387. 
claim  of  state  for  taxes,  when  not  suspended,  387. 
citation  to  parties  in  proceedings  to  collect  tax,  400. 
common-law  remedy,  when  not  maintainable  against  executor, 

388. 
compulsion  of  law,  executor  against  legatee,  392. 
contempt  proceedings  against  executor,  391. 
conveyance  by  legatee  to  nontaxable  person,  no  bar  to  tax,  393. 
county  court  in  Illinois,  jurisdiction  to  collect  tax,  397. 
county  treasurer  may  apply  for  appraiser,  391. 

receipt  of,  when  purchaser  of  land  protected  by,  394. 

receipt  of,  where  assessment  on  land,  394. 

in  Illinois,  to  notify  state's  attorney,  397. 

when  decrees  or  orders  ex  parte  not  binding  upon,  399. 
decree  of  surrogate,  when  conclusive,  398  (note). 

or  order  ex  parte,  when  not  binding,  399. 

when  remedy  from,  by  appeal,  401. 
defenses  of  legatee  upon  proceedings  to  collect  tax,  392. 
demand    for  tax,    when  necessary  under  acts   of  congress,   396 
(note). 

for  tax,  not  necessary  in  New  York,  396,  397. 
district  attorney,  proceedings  by,  to  compel  payment  in  New 
York,  391,  395-397. 

when  proper  party  on  accounting,  397. 

costs  of,  402,  and  notes. 

effect  of  receipt  upon  proceedings  of,  399  (note), 
executor,   action    by,    against   legatee,    under   English    statutes, 
391,  392. 

personal  liability  of,  under  English  statutes,  389,  390. 

personal  liability  of,  under  acts  of  congress,  373,  374,  388,  389. 

personal  liability  of,  how  enforced,  395-397. 


INDEX.  635 

[References  are  to  Pages.] 

REMEDY  AND  PRACTICE— Continued, 

personal  liability  of,  in  New  York,  365,  374,  390,  391. 

when  liable  by  attachment  or  contempt,  391. 

personal  liability  of,  in  Pennsylvania,  390. 

proceedings  by,  for  appraiser,  397. 

personal  liability  of,  for  costs,  390,  391. 
forfeiture,  when  no  limitation  against  tax  as,  406  (note), 
injunction,  testing  constitutionality  of  statute  by,  389  (note), 
interest  and  penalties  for  nonpayment  of  tax,  411  et  seq. 
jurisdiction  of  surrogate  in  New  York,  394. 
justification  and  defense  to  legatee,  what  is,  392. 
land,  in  what  proportion  to  be  taxed,  410. 
legatee,  liability  of,  to  executor,  under  American  statutes,  392. 

not  liable  unless  he  accepts  legacy,  392. 

release  by  nontaxable  person,  no  bar,  393. 
liens,  defined,  405. 

taxes  not,  unless  assessed,  405. 

when  statutory,  405. 

how  enforced  under  acts  of  congress,  3S9,  393,  410. 

under  acts  of  congress,  when  presumed  to  be  paid,  410. 

under  English  statutes,  405. 

as  between  purchaser  and  vendor,  405  (note). 

under  Pennsylvania  statute,  406. 

how  discharged  by  judicial  sales,  409. 

when  purchaser  of  land  takes  subject  to,  410. 

of  tax  in  New  York,  405,  406. 

under  laws  of  Illinois,  406. 

when  perpetual  against  legatees,  407. 

to  what  it  attaches,  393. 

when  divested  by  partition  sale,  409. 

when  purchasers  of  real  estate  protected  against,  393,  405, 
406. 

effect  of  neglect  to  enforce  in  20  ytars,  as  against  purchas- 
ers, 393,  408,  409. 

after  42  years  presumed  to  be  paid,  408. 
litigation,  effect  of,  upon  penalty  for  delay,  413. 
mandamus,  writ  of,  to  restrain  collection.  389  (note), 
mistake  or  fraud,  effect  upon  receipt  for  taxes,  399. 

of  law,  tax  cannot  be  recovered  for,  403. 


636  INDEX. 

[References  are  to  Pages.] 

REMEDY  AND  PRACTICE— Continued, 

notice  and  hearing  before  appraiser,  391,  400,  401. 

and  hearing,  infants  entitled  to,  401. 

when  giving  of,  by  surrogate,  presumed,  401. 
orphans'  court,  bill  in,  by  register,  to  collect  tax,  390. 
partition,  when  sale  divests  lien,  409. 

proceedings,  money  paid  legatee  in,  389,  393. 

proceedings,  liability  of  alien  devisee  in,  393. 

sales,  -no  personal  liability  of  purchaser  at,  393. 
penalty  or  forfeiture,  no  limitation  against  tax  as,  406. 

as  to  action  to  recover,  where  tax  illegally  exacted,  410  (note), 
413  (note). 

action  to  recover  back,  not  barred  by  statute  of  limitations, 
413   (note). 

when  nonresident  not  liable  for,  411  (note). 

when  interest  added  by  way  of,  411. 

statutes  imposing,  strictly  construed,  411. 

when  actions  for,  cannot  be  enforced  in  foreign  states,  411. 

under  Pennsylvania  statutes  from  1854  to  1887,  412. 

when  failure  to  pay,  caused  by  honest  doubt,  412. 

not  chargeable  where  unavoidable  delay,  412,  414. 

when  imposed  for  resisting  state's  claim,  412. 

litigation  when  it  tolls,  413. 

controversy  between  claimants  does  not  toll,  413. 

litigation  between  distributees  does  not  toll,  413. 

for  delay,  under  New  York  statutes,  413  et  seq. 

unavoidable  cause  of  delay,  New  York  statutes,  etc.,  not  Im- 
posed for,  under  Act  1887,  413,  414. 

where  penalty  removed  interest  charged  from  death,  415. 

claims,  necessary  litigation,  or  other  unavoidable  cause  of  de- 
lay, not  imposed  for  (Laws  1892),  414,  415. 

burden  of  proof  upon  party  claiming  exemption  from,  414. 

stay  of  proceedings,  effect  of  on  interest  and,  415. 

ignorance  of  law  by  foreigners  no  excuse  for  excepting  from, 
411  (note),  415. 

when  prevented,  but  interest  allowed,  415. 

interest,  how  charged,  when  penalty  removed,  415. 

not  charged  where  litigation  prevents  "the  determination  and 
payment  of  tax,  Act  New  York  1892,"  416. 


INDEX.  637 

[References  are  to  Pages.] 

REMEDY  AND  PRACTICE— Continued, 

when  not  imposed  where  decedent  died  before  Act  1892,  416. 
petition  for  remission  of,  when  insufficient,  416. 
petitions  to  remit,  what  to  allege,  416. 

not  imposed  where  litigation  necessary  to  determine  the  valid- 
ity of  a  trust,  416. 
when  failure  to  sell  seat  in  Stock  Exchange  does  not  relieve 

from,  417. 
none  imposed  in  cases  of  powers  of  appointments,  417. 
petition  by  district  attorney  to  compel  payment,  395,  396. 
prohibition,  writ  of,  to  restrain  collection,  389  (note), 
protest,  when  taxes  paid  under,  may  be  recovered,  404. 
purchaser,  right  of,  against  vendor,  for  taxes  paid  on  land,  393, 
394,  405,  406. 
liability  of,  under  acts  of  congress,  393. 
when  protected  by  receipt  of  treasurer,  394,  406. 
when  taking  land  subject  to  lien,  410. 
receipt  for  taxes,  no  bar  where  omitted  to  be  paid  by  mistake  or 
fraud,  399. 
for  taxes,  effect  upon  proceedings  of  district  attorney,  399, 

note  60. 
for  taxes,  by  county  treasurer,  394,  399  (note), 
in  full  for  taxes,  effect  of,  417  (note), 
for  taxes,  effect  of,  upon  state,  as  estoppel,  399. 
reference,  power  of  surrogate  to  order,  356,  401. 
refund  of  tax  in  New  York,  how  made,  403,  404. 
register  of  wills,  must  be  furnished  with  all  facts,  390. 
release  or  conveyance,  effect  of,  by  legatee,  to  nontaxable  per- 
son, 393. 
remedy,    when  personal   liability    of   executor,   or   proceeding   in 

rem,  389. 
renouncing  legacy  by  legatee,  when  a  defense,  392. 
repeal,  effect  of,  upon  taxes  due,  420,  423. 

effect  of  saving  clause,  424. 
restitution  of  tax  erroneously  paid,  403,  404. 

question  of,  does  not  arise  on  appeal,  404. 
retroactive,  amendatory,  and  repealing  statutes,  417  et  seq. 
special  guardians,  infants  when  to  have,  401. 
sheriff,  no  right  to  pay  tax  out  of  proceeds  of  sale,  393. 


638  INDEX. 

[References  are  to  Pages.] 

REMEDY  AND  PRACTICE— Continued, 

state,  what  it  must  show  to  collect  tax,  398,  399. 

comptroller  in  New  York  may  refund  illegal,  etc.,  payments, 
403,  404. 
statute,   when  unconstitutional,   remedy  under,  to  recover  taxes, 
404. 
taking  effect  immediately,  effect  of,  upon  tax,  420. 
estates  vesting  before  passage  of,  417  (see  In  re  Seaman,  32, 
38,  80,  228,  248,  254,  275,  280,  282,  285,  288,  304,  307,  308, 
309,  352,  Addenda), 
of  limitations,  when  state  not  bound  by,  406-408. 
of  limitations,  as  to  legatees  and  executors,  406. 
of  limitations,  when  no  bar  to  recovery  of  penalty,  406  (note), 
of  limitations,  debt  barred  by,  not  taxable,  407. 
statutory  remedy  to  collect  tax,  when  exclusive,  386. 
stay  of  proceedings,  effect  on  interest  and  penalty,  415. 
summons  in  Illinois  to  collect  tax,  390. 

supreme  court,  United  States,  power  of,  to  review  state  court,  402 
(note). 
of  New  York,  no  equity  jurisdiction  over  tax,  395. 
of  New  York,  may  order  reappraisement,  395. 
surrogate's  court,  jurisdiction  of,  394. 
surrogate,  when  notice  by,  presumed,  401. 
taxes,  erroneously  paid,  proceedings  to  refund,  403. 

paid  under  protest,  how  recovered,  404. 
testimony,  power  of  surrogate  to  take,  401. 
trustee,  proceedings  by,  to  assess,  397. 
unavoidable  cause  of  delay,  penalty  excused  by,  413,  414. 
writ  of  prohibition,  when  to  restrain  enforcement  of  tax,  404. 

RENOUNCED, 

commissions  of  executor,  when  not  taxable,  366. 
legacy  renounced  by  legatee  not  taxable,  392. 

REPEAL. 

of  statute,  effect  of,  upon  taxes  due,  423  (note  201),  424. 

effect  of  saving  clause,  424. 

of  acts  of  congress,  14  (and  note  45),  424  (note  202). 

REPORT  OF  APPRAISERS, 

see  "Appraisers." 


INDEX.  639 

[References  are  to  Pages.] 

RESIDENCE  AND  RESIDENTS, 

see  "Domicile";    "Nonresident  Decedents";  "Resident  Decedents." 

RESIDENT  DECEDENTS, 

general  rules  as  to  domicile  and  situs,  145. 

power  of  state  to  tax  legacies  given  by,  140,  151. 

legatee's  domicile  as  to  personal  property  and  its  situs,  64. 

conflict  under  statutes  as  to,  147. 

their  heirs  and  legatees,  taxation  of,  148. 

taxation  of  both  resident  and  nonresident  legatees,  149. 

taxation  of  personalty,  though  situate  abroad,  146,  14S-151. 

stocks  of  foreign  corporations  liable,  149,  150. 

notes  secured  by  mortgages  in  other  states,  150. 

legacy  paid  to  resident  executor  after  death,  not  taxable,  150. 

when  such  legacy  taxable  in  Pennsylvania,  151. 

partnership  interests,  lands,  stocks,  and  bonds  taxable,  151. 

personalty  passing  under  trust  deed  to  foreign  corporation  liable, 
151. 

foreign  and  domestic  real  estate,  under  doctrine  of  equitable  con- 
version,  152. 

direct  tax  on  foreign  real  estate  not  imposable,  152,  156. 

doctrine  as  to,  in  England,  153. 
New  York,  153,  154. 
Pennsylvania,  155-158. 

declaration  of,  that  he  was  a  resident,  binding,  158. 

RESIDENT   LEGATEE, 

foreign  real  estate  devised  to,  when  not  taxable,  152. 

RESIDUARY  ESTATE, 

when  insufficient  to  pay  tax  upon  legacies,  267. 

RESIDUARY  LEGATEES, 

when  taxes  chargeable  against,  380  (note). 

RESTITUTION, 

under  English  statutes,  404  (note). 

of  tax  in  New  York,  under  acts  of  1S87  and  1892,  403. 

when  surrogate  may  order  refund  of  tax,  404. 

when  question  of,  not  considered  on  appeal,  404. 

RETROACTIVE   STATUTES, 

clauses  as  to,  in  English  acts,  12  (note),  307,  314  (note),  417,  418. 
cases  as  to,  decided  under  10  &  17  Vict.  c.  51,  314,  315. 


640  INDEX. 

[References  are  to  Pages.] 

RETROACTIVE  STATUTES— Continued, 

under  acts  of  congress,  307,  314,  315. 

under  Act  N.  Y.  1S92,  and  prior  acts,  307,  314,  418. 

act  of  1S92  not  retroactive  as  to  wills  in  New  York,  In  re  Sea- 
man, 32,  38,  80,  22S,  248,  254,  275,  280,  282,  285,  288,  304,  307, 
308,  309,  352,  Addenda. 

as  to  gifts  and  grants  causa  mortis,  In  re  Seaman,  32,  38,  80, 
228,  248,  254,  275,  280,  282,  285,  2S8,  304,  307,  308,  309,  352,  Ad- 
denda. 

when  constitutional  as  being,  54,  55,  418. 

taxing  estates  undistributed,  55,  56. 

strictly  construed,  and  not  favored,  307,  418. 

exemption  of  charitable,  etc.,  corporations  by,  valid,  55  (note),  308, 
309. 

exemption  by,  of  adopted  children,  etc.,  55  (note). 

effect  of  treaty  upon  prior  tax  laws,  58. 
see  "Remedy  and  Practice";    "Statutes." 

REVENUES, 

from  inheritance  taxes  in  England  and  the  United  States,  12,  21. 

REVERSIONS  AND  EXPECTANCIES, 
appraisement  of,  in  New  York,  243. 

REVISED  STATUTES  OP  NEW  YORK, 

provisions  of,  as  to  vested  and  contingent  estates,  279,  280  (notes), 
provisions  of,  as  to  powers  of  disposition,  2SG  (note). 

REWARD, 

when  institutions  charging  fees  or  reward  not  almshouses,  104. 

ROBERTS,  JAMES  A., 

state  comptroller  New  York,  report  of,  for  1895,  21  (note). 

ROMAN  LAW, 

succession  taxes  under,  7. 
exemptions  under,  7. 

ROMILLY,  M.  R., 

criticism  of  the  legacy  and  succession  duty  act  by,  regarding  non- 
residents, 165. 

RUSSIA, 

succession  taxes  in,  2. 


INDEX.  041 

[References  are  to  l'ages.J 

s 

SATISFACTION, 

when  receipt  for  taxes  not,  399. 

SAVING  CLAUSE, 

effect  of,  in  repealing  statute,  308  (note),  424. 

SCHOOLHOUSES, 

exemption  of,  78,  101,  112. 

SCIENTIFIC  SOCIETIES, 
exemption  of,  84. 

SEAMEN, 

homes  for,  97,  101. 
societies  to  improve,  78. 

SECOND  DUTIES, 

when  not  to  be  imposed,  144. 

SECRET  TRUST, 

exemption  of  legacies  under,  92,  93. 

SECURITIES, 

taxation  of  personalty  situate  abroad,  146,  148-151. 

stocks  of  foreign  corporations  liable,  149,  150. 

notes  secured  by  mortgages  in  other  states,  150. 

personalty  passing  under  trust  deed  to  foreign  corporation,  151. 

SEMITNARY  OF  LEARNING, 

Young  Men's  Christian  Association  not  exempt  as,  111. 

SERVICES, 

legacy  for,  when  not  taxable,  343,  344. 

SHARES, 

see  "Nonresident  Decedents";   "Securities." 

SHERIFF, 

when  not  authorized  to  pay  succession  tax,  393. 

SISTERS, 

see  "Exemptions." 

SITUS, 

legatee's  or  owner's  domicile  as  to  situs  of  personalty,  64. 
doctrine  of  domicile,  residence,  or  situs  first  announced,  regard- 
ing personalty,  in  1830,  161. 
law  inker.—  41 


642  1NDKX. 

[References  are  to  Pages.] 

SITUS— Continued, 

as  to  tangible  and  intangible  property,  173  (note). 

of  bonds  and  stocks,  176,  177,  180. 

bonds  and  stocks  of  nonresidents  in  New  York,  when  they  have 

no  situs  there,  180,  181  et  seq. 
of  foreign  legacies,  187,  192,  197. 
when  property  cannot  have  more  than  one,  193. 
of  real  estate  for  taxation,  190,  193. 
lex  situs,  as  considered  by  Justice  Gray,  196. 
considered  as  to  taxing  nonresidents,  192  et  seq.,  194. 

see  "Domicile";   "Nonresident  Decedents";   "Resident  Dece- 
dents." 

SLAVE, 

gift  of  freedom  to,  taxed,  17  (note),  343  (note  292). 

SMALL  ESTATES, 

when  exempted,  134  et  seq. 
see  "Exemptions." 

SMITH,  ADAM, 

upon  legacy  tax,  8. 

SOCIETIES, 

see  "Almshouses";   "Exemptions." 

SPAIN, 

succession  taxes  in,  2. 

SPECIAL  ACTS, 

exemption,  when  by,  93,  94,  98,  99,  111,  112. 

exemption  of  charitable  institutions  under  general  or,   94-96, 

111,  112. 
when  corporation  is  not  exempted  by  general  or,  99,  100. 
when  charitable  institution  not  exempt  by,  103. 
legacy  act  valid  as,  45. 

SPECIAL  GUARDIAN, 

of  infants,  when  to  be  appointed  in  New  York,  256,  257,  258 
(note). 

SPECIAL  TAX, 

legacy  tax  laws  valid  as  general  or,  45,  104. 
statutes  imposing,  strictly  construed,  75. 


INDEX.  643 

[References  are  to  Pages.] 

STAMP  TAX, 

English  legacy,  when  a  species  of,  9. 

STANDARDS, 

of  mortality  and  of  value  to  be  followed  in  New  York,  225. 

STATE, 

general  power  of,  as  to  taxation,  29  et  seq. 
power  of,  to  regulate  succession  to  property,  30,  37,  65. 
power  of,  to  tax  securities  held  by  resident  decedents,  65. 
power  of,  to  tax  foreign  decedents'  estates,  64,  65  et  seq.,  159, 166. 
jurisdiction  over  tangible  and  intangible  property  of  nonresi- 
dents, 166,  172. 
exemptions  granted  by,  when  constitutional,  68. 
receipt  for  tax,  when  not  estoppel  against,  399. 
when  not  estopped  from  taking  appeal,  259. 
when  not  barred  from  collecting  tax,  407. 
neglect  of  to  prosecute  proceedings  for  tax,  260. 
statute  of  limitations,  when  not  binding  upon,  406. 
see  "Constitutionality";   "Jurisdiction." 

STATE'S  ATTORNEY, 

proceeding  by,  to  collect  tax,  in  Illinois,  396,  397. 

STATE  COMPTROLLER  OF  NEW  YORK, 

supreme  court  may  reappraise  on  application  of,  207,  259. 
power  of,  to  compromise  with  beneficiaries,  383. 
report  as  to  revenue,  21,  22,  note. 

STATE  COURTS, 

power  of  supreme  court  of  United  States  to  review,  402  (note). 

STATE  SECURITIES, 

when  liable  to  inheritance  tax,  59  et  seq. 

STATE  TREASURER, 

when  to  be  made  party  upon  appeal,  404. 

STATUTE, 

when  it  takes  effect  at  common  law,  419. 

exempting  from  taxation,  strictly  construed,  74,  386. 

when  construed  strictly  against  state,  75. 

when  remedy  under  conclusive,  3S6. 

when  means  of  enforcing  exclusive,  3S6  (note  2). 

when  common-law  methods  may  be  pursued,  387. 


644  INDEX. 

[References  are  to  Pages.] 

STATUTE— Continued, 

taking  effect  immediately,  effect  of,  420-422. 

retroactive,  amendatory,  and  repealing,  417  et  seq. 

when  retroactive,  54  et  seq.,  417,  418. 

when  not  ex  post  facto,  54  et  seq.,  56. 

amendatory,  concerning  adopted  children  in  New  York,  121  et 

seq.,  421,  422. 
legitimating  children,  effect  of,  130. 
repeal  of,  effect  on  taxes  due,  423,  424. 
early,  of  Pennsylvania,  as  to  appraisement  and  remainders,  233 

(note), 
of  limitations,  when  state  not  bound  by,  406. 

where  state  neglects  to  enforce  tax  lien,  408,  409. 
when  not  a  bar  to  recovery  of  penalty,  410  (note). 
debt  barred  by,  and  left  as  legacy,  not  liable,  407. 
debt  released  by  will,  and  barred  by  statute  of  limitations,  not 

taxable,  347. 
of  limitations,  none  in  favor  of  owners,  devisees,  etc.,  407. 

as  to  purchasers  of  real  estate  subject  to  tax,  406,  407,  410. 
against  tax,  as  penalty  or  forfeiture,  6,  7,  406  (note), 
see  "Remedy  and  Practice." 

STATUTE  OF  FRAUDS, 

when  state  cannot  take  advantage  of,  to  impose  tax,  335. 

STATUTE  OF  LIMITATIONS, 

see  "Remedy  and  Practice";    "Statute." 

STATUTES, 

of  New  York,  from  1887  to  1895,  Appendix,  425,  458. 
New  Jersey,  for  1894,  Appendix,  459,  466. 
Pennsylvania,  from  1SS7  to  1S95,  Appendix,  467,  476. 
Massachusetts,  from  1891  to  1895,  Appendix,  477,  483. 
Maine,   for  1893,  1895,  Appendix,  4S4,  4S8. 
Ohio,  for  1893,  1894,  Appendix,  489,  497. 
Connecticut,  for  1SS9,  1893,  Appendix,  498,  502. 
Maryland,  Code  1S88,  Appendix,  503,  509. 
California,  for  1893,  1895,  Appendix,  510,  517. 
Illinois,  for  1895,  Appendix,  518,  526. 

STATUTORY  EXEMPTIONS, 
enumerated,  77  et  seq. 
see  "Exemptions." 


LNi/JEX.  645 

[References  are  to  Pages.] 

STATUTORY  LIENS, 

when  taxes  aue,  405  et  seq.,  411  et  seq. 
see  "Lieu." 

STAY   OF   PROCEEDINGS, 

effect  of,  upon  interest  and  penalty  on  tax,  415. 

STEPPARENT, 

when  not  a  parent,  under  New  York  statute,  123. 

STOCK  CORPORATIONS, 

included  in  term  "incorporated  companies,"  79  (note),  95-99. 
when  not  exempt,  79  (note),  95,  97-99. 

STOCKS, 

and  bonds,  appraisement  of  in  New  York,  209,  210. 

giving  a  special  situs  for  taxation,  192,  194,  195. 

of  nonresident  decedents,  when  exempt  in  New  York,  180  et  seq., 

1S3,  1S4. 
objections  to  rule  of  exempting  foreign  stocks  and  bonds,   185, 

1ST. 
of  nonresident  decedents  exempt  in  Pennsylvania,  175-179,  et  seq. 
transfer  of,  by  foreign  executors,  etc.,  176,  370-372. 

see  "Nonresident  Decedent";  "Resident  Decedents";  "Securi- 
ties";   "Tangible  and  Intangible  Property." 

STRANGERS  TO  THE  BLOOD, 

when  illegitimate  children  legitimated  not,  131. 

SUCCESSION, 

definition  of,  134,  274. 

what  deemed,  for  purpose  of  taxation,  191  et  seq. 

rule  of,  as  to  of  "foreign  legacies,"  197. 

where  it  takes  place  for  purposes  of  taxation,  166  et  seq. 

taxation  of,  in  two  states,  191,  192  et  seq. 

SUCCESSION  AND  LEGACY  TAXES, 

approved  by  jurists  and  political  economists,  2,  3  (notes). 

authors  and  books  upon,  11  (note). 

a  successful  means  of  revenue,  2,  3,  11,  12,  21  (note). 

reasons  for  such  taxes,  2,  5. 

the  tax  denned,  5. 

defined  and  theory  of  discussed,  5,  630  et  seq. 

the  Roman  law  in  relation  to,  7. 

succession,  legacy,  estate,  and  other  duties  in  England,  8,  11,  12. 


646  INDEX. 

[References  are  to  Pages.] 

SUCCESSION  AND. LEGACY  TAXES— Continued, 
under  the  acts  of  congress,  14,  274. 
the  American  statutes  enumerated,  13. 
exemptions  under  American  statutes,  75  et  seq. 
the  Canadian  statutes,  26  et  seq. 
in  Australian  colonies,  2. 
proposed  legislation  on  in  United  States,  25. 
nature  and  constitutionality  of,  30  et  seq. 
not  a  penalty  or  forfeiture,  6,  7,  406  (note). 
power  to  impose  upon  foreign  real  estate,  65,  67. 
when  municipal  corporations  may  impose,  71,  72. 
exemptions  under,   when  constitutional,  68. 

see  "Constitutionality";    "Remedy  and  Practice." 

SUCCESSION  DUTY  ACT, 

history  of,  in  England,  8  et  seq. 

synopsis  of,  9-12  (note). 

rates  of  duty  under,  12,  13  (note). 

revenue  derived  from,  11,  12. 

English  writers  on  this  and  other  English  duties,  11  (note  39). 

comments  of  Layton  on,  10  (note). 

exemptions  under,  10,  11,  92. 

property  of  nonresident  decedents  under,  159  et  seq.,  161-163  et 

seq. 
conflict  between,  and  legacy  duty  act,  161-163  et  seq. 
see  "Nonresident  Decedents." 

SUPERINTENDENT  INSURANCE  DEPARTMENT, 

to  determine  value  of  estates  in  New  York,  225,  280,  281. 
certificate  of,  when  conclusive,  225,  280,  281. 

SUPREME  COURT  OF  NEW  YORK, 

has  no  original  jurisdiction  to  hear  the  proceeding  except  by  ap- 
peal, 352,  353. 

power  of,  to  reappraise,  on  application  of  state  comptroller,  207, 
353,  354. 

SUPREME  COURT  UNITED  STATES, 

power  of,  to  review  state  court  by  appeal,  402. 

SURETIES, 

of  register  of  wills,  liability  of,  362  (note), 
see  "Register  of  Wills." 


INDEX.  647 

[References  are  to  Pages.] 

SURROGATE, 

jurisdiction  of,  204-206,  348,  349,  3S2,  394,  395. 

constitutionally  empowered  to  hear  and  determine,  71,  348,  349. 

when  he  acts  as  an  assessor,  204-206. 

when  jurisdiction  of,  exclusive  in  the  first  instance,  349,  350,  352, 
394,  395. 

when  jurisdiction  exclusive  of  supreme  court  in  New  York,  205, 
206,  352,  395. 

when  supreme  court,  on  application  of  state  comptroller,  may  order 
reappraisement  after  decree  of,  353,  395. 

has  power  to  direct  a  tax  to  be  refunded  by  county  treasurer,  351. 

may  authorize  state  comptroller  to  refund  a  tax,  351,  352. 

duty  of  first  acquiring  jurisdiction  as  regards  real  estate,  354. 

application  of,  for  certificate,  superintendent  of  insurance,  2S0,  281. 

to  hear  all  questions  relating  to  tax,  349. 

questions  of  liability  and  exemption,  349-352. 

has  jurisdiction  over  real  estate  in  other  counties,  354. 

when  decree  of,  conclusive  upon  state,  350,  355. 

when  decree  conclusive  upon  adopted  son,  355. 

full  power  to  construe  will,  350,  351. 

may  declare  provisions  of  will  void,  351. 

may  pass  upon  the  validity  of  a  bequest  in  appraisement  proceed- 
ings, 351. 

when  not  bound  by  appraiser's  report,  263,  349,  352,  354. 

must  notify  county  treasurer  of  all  proceedings,  355. 

will  not  enforce  proceedings  until  after  IS  months  from  death,  355. 

power  of,  to  enforce  decrees,  355. 

may  enforce  proceedings  by  contempt,  355. 

may  issue  execution  and  attachment,  356. 

may  direct  executors  to  pay  tax,  356. 

may  order  reference  upon  disputed  questions,  356,  401. 

no  jurisdiction  to  compel  legatee  to  repay  taxes  to  executor,  356, 
382. 

when  no  jurisdiction  to  compel  executor  to  pay  tax,  356. 

power  of,  to  take  testimony,  401. 

rules  of,  in  New  York  county,  356  (note  37). 

rules  of,  in  New  York  county,  with  reference  to  appeals,  257  (note). 

duties  of,  as  to  appointing  appraisers,  210.  349. 

see  "Appraisement";    "Appraiser";   "Remedy  and  Practice." 


648  INDEX. 

[References  are  to  Pages.] 

SURROGATES'   COURTS, 

jurisdiction  of,  71,  204-206,  348-350,  352,  354,  382,  394,  395. 
rules  of,  in  New  York  county,  upon  filing  appraiser's  report,  257. 
constitutionally  empowered  to  hear  all  questions,  71,  318. 
proceedings  in,  to  collect  tax,  357,  359  et  seq.,  395-397. 

SURVIVORSHIP, 

presumption  as  to,  where  death  by  drowning,  133. 

SWEDEN, 

succession  taxes  in,  2. 

SWITZERLAND, 

succession  taxes  in,  2. 

T 

TANGIBLE  AND  INTANGIBLE  PROPERTY, 

specified  and  defined,  173  (note  104),  174. 

rule  of  distinction  between,  and  intangible  property,  148,  172, 

191. 
taxation  of,  174. 

taxation  of,  in  Connecticut,  Massachusetts,  and  other  states,  168. 
as  to  property  of  nonresidents,  174,  194,  195. 
rule  in  Pennsylvania  as  to,  175,  176. 
rule  as  to  in  New  York,  180  et  seq. 
Euston's  Case,  181. 
Romaine's  Case,  182. 
James'  Case,  183  et  seq. 
objections  to  James'  Case,  185. 
Phipps'  Case,  187  et  seq. 

see  "Nonresident  Decedents";   "Property";   "Real  Estate." 
TAXATION, 

the  general  rules  as  to,  74. 

exemptions  from,  under  general  statutes  of  New  York,  77  et  seq. 
exemptions  from,  in  other  states,  84,  91. 
where  succession  takes  place  for  purpose  of,  191  et  seq. 
fiction  of  "Mobilia  sequuntur  personam"  not  applicable  to,  66 
(note),  167,  168,  169  et  seq. 

see  "Mobilia  Sequuntur  Personam";  "Succession";  "Succes- 
sion and  Legacy  Taxes." 


INDEX.  049 

[References  are  to  Pages.] 

TAX  COLLECTOR, 

compelled  to  pay  tax,  may  recover  from  person  assessed,  382. 

TAXES, 

"collateral  and  direct  inheritance"  defined,  5  et  seq.,  30  et  seq. 

imposed  upon  net  value  of  estates,  200,  201,  324,  325. 

not  imposed  upon  subsequent  increase  or  income,  260,  261,  418, 

419. 
only  discharged  by  payment,  376. 
in  what  county  to  be  paid,  354,  362. 
failure  of  remainder-man  to  file  bond,  become  due  and  payable, 

317,  320. 
bona  fide  transfer  inter  vivos  to  defeat,  effect  upon,  329,  334,  335. 
upon  fraudulent  transfers,  gifts  inter  vivos,  causa  mortis,  etc., 

327  et  seq. 
interest  and  penalties  for  nonpayment  of,  411  et  seq. 
interest  on,  not  implied,  411. 
when  general  estate  chargeable  with,  378. 
when  legacy  free  of,  378. 

refund  of,  for  debts  after  payment,  198,  200-202. 
refund  of,  for  debts,  rule  in  England,  202. 
refund  of,  for  debts,  etc.,  in  New  York,  201  (note), 
restitution  of,  in  New  York,  where  erroneously  paid,  403,  404. 
effect  of  amendatory  statutes  upon,  when  due,  419,  420. 
security  for,  on  appeal,  402. 

TENANT  BY  ENTIRETY, 

share  of  wife  as,  227,  284,  269. 

when  taxable,  284,  285. 

right  of  wife  as  to  partition,  269. 

TENANT  FOR  LIFE, 
see  "Life  Tenant." 

TENANT  IN  REMAINDER, 

see  "Remainder-Man";    "Remainders,  Contingent  and  Future  Es- 
tates." 

TENNESSEE, 

history  of  collateral  tax  in,  23. 

exemptions  under  statute  of,  90. 

tax  upheld  as  constitutional,  see  Addenda,  State  v.  Alston,  xlx. 


050  INDEX. 

[References  are  to  Pages.] 

TERMS  OF  YEARS, 

duty  of  appraiser  as  to,  209,  225,  226. 

TESTATES, 

see     "Intestates";     "Nonresident     Decedents";     "Resident    Dece- 
dents." 

TESTATOR, 

tax  not  generally  a  charge  upon  estate  of,  377,  378,  387. 
power  of,  to  charge  tax  upon  general  estate,  378,  379. 

TESTIMONY, 

power  of  appraiser  and  surrogate  to  take,  213,  401. 

TITLE, 

moneys  paid  to  extinguish,  not  taxable,  385. 

TITLE  OF  ACT, 

constitutional  objections  to,  51,  57. 
see  "Acts";    "Statutes." 

TRACT  SOCIETIES, 

exemption  of,  in  New  York,  84. 

TRANSFERS, 

inter  vivos  or  causa  mortis,  to  evade  tax,  327  et  seq. 
see  "Gifts  inter  Vivos  and  Causa  Mortis." 

TREASURER, 

of  county,  duty  of,  when  tax  unpaid,  356-359. 
as  to  fees  of  and  their  successors,  in  Pennsylvania,  363  (note), 
right  of,  to  sue  executor,  at  law,  in  New  York,  362  (note),  391. 
commissions  of,  and  effect  of  receipt,  362  (note), 
see  "County  Treasurer." 

TREATY, 

when  tax  does  not  conflict  with,  58. 
tax  conflicting  with,  invalid,  58. 
when  retroactive  upon  tax  laws,  58. 

TREVOR, 

Ch.  C,  on  English  duties,  11. 

TRUST  DEEDS, 

property  passing  under,  when  taxable,  327,  331,  332  et  seq. 
see  "Gifts  inter  Vivos  and  Causa  Mortis." 


INDEX.  651 

[References  are  to  Pages.] 

TRUSTEES, 

liability  of,  under  English  acts,  12,  389,  390. 

liability  of,  under  Pennsylvania  act,  390. 

may  be  cited  by  register  of  wills  in  Pennsylvania,  362. 

liability  of,  under  New  York  acts,  390,  391. 

when  expenses  of,  cannot  be  deducted  from  estate,  381. 

personally  liable  for  tax  until  paid,  303,  365,  374. 

when  liable  to  contempt  proceedings,  355. 

when  liable  to  attachment  or  execution,  356. 

to  give  bond  to  pay  tax,  356,  363. 

to  pay  tax  to  county  treasurer,  etc.,  364. 

when  personally  liable  for  costs  in  New  York,  360. 

to  deduct  tax  from  legacies,  364,  365,  369. 

canuot  deliver  legacy  until  tax  collected,  364. 

full  power  to  collect  tax,  364,  365. 

may  sell  property  to  pay  tax,  364-3G0. 

mode  of  payment  by  will  not  sanctioned,  379,  380. 

when  property  passing  to,  under  trust  deeds,  taxable,  331,  332 

et  seq. 
when  not  liable  for  tax  upon  foreign  legacies,  197,  371. 
liability  of,  as  to  legatee,  etc..  377-380. 
liability  of  legatees  to,  for  taxes  paid,  373,  374. 
bequest  to,  in  lieu  of  cojamissions,  when  exempt,  83  et  seq.,  366. 
when  commissions  exceed  amount  allowed  by  law  in  New  York, 

366-368. 
with  power  of  appointment,  liability  of,  249,  305,  339. 
foreign,  liability  of,  for  tax,  370,  371. 
entitled  to  notice  of  appraisement,   369. 
proceeding  of,  to  have  property  assessed,  369,  397. 
to  take  duplicate  receipts  for  tax  paid,  364. 
see  "Administrators";   "Executors." 

TRUSTS, 

deeds  and  gifts  to  evade  tax,  liability  of,  327  et  seq. 
see  "Gifts  inter  Vivos  and  Causa  Mortis." 


652  INDEX. 

[References  are  to  Pages.] 

u 

UNAVOIDABLE  CAUSE, 

of  delay  in  settling  estate,  effect  of  upon  penalty,  413,  414,  415,  416. 
In  New  York,  must  prevent  the  determination  and  payment  of  tax, 

416. 
defined,  414. 

UNCERTAIN  EVENT, 

see  "Remainders,  Contingent  and  Future  Estates." 

UNITED  STATES, 

bonds  of,  when  taxable,  59. 

when  legacy  to,  taxable,  115,  118,  119. 


VALUABLE  CONSIDERATION, 

transfer  inter  vivos  or  causa  mortis,  to  avoid  tax,  must  be  upon, 
329. 

VALUE, 

how  determined,  198  et  seq.,  216,  218  et  seq. 

determined  by  superintendent  of  insurance  in  New  York,  225, 

280,  281. 
appointment  of  appraiser  to  ascertain,  209  et  seq. 
when  property  not  appraisable  upon,  increased,  260  et  seq. 
rules  where  debts  exceed  value  of  estate,  198  et  seq. 
see  "Appraisement";  "Appraiser." 

VENDORS  AND  PURCHASERS, 

when  vendor  liable  to  purchasers  for  taxes  paid,  393,  394. 
liability  of,  under  English  statutes,  377  (note),  405  (note), 
see  "Real  Estate." 

.VESTED  ESTATES, 

under  New  York  statutes,  275  (note). 

defined,  under  New  York  statute,  279,  280  (note),  283  (note). 

what  estates  embraced  within,  276. 

see  "Remainders,  Contingent  and  Future  Estates." 

VESTED  RIGHTS, 

when  not  affected  by  amendatory  statutes,  421,  422. 


INDEX.  653 

[References  are  to  Pages.] 


VIRGINIA, 

tax  in  considered,  13,  17. 
history  of  laws  in,  17  (note  53). 
exemptions  under  statute  of,  85,  100,  111. 


W 

WAIVER, 

by  remainder-man,  of  right  to  file  bond,  320,  32L 

WALLACE,  ROBERT  J., 
epitome  of  death  duties,  11. 

WEDLOCK, 

exemption  of  persons  born  in,  76,  83,  84,  87,  88,  120. 
when  illegitimate  children  deemed  born  in,  130. 

WEST  VIRGINIA, 

tax  in,  considered,  17. 

statute  of  taxes,  public  securities,  59  (note). 

exemptions  under  statute  of,  85. 

WIDOW, 

word  defined,  131. 

when  liable  to  tax,  131. 

and  husbands  of  deceased  daughters,  132. 

value  of  life  estate  while  she  is  a,  or  until  she  marries,  228. 

rule  as  to  taxation  where  she  has  power  of  disposition,  242,  243, 

286. 
right  as  life  tenant  of,  to  use  up  principal,  287. 
when  remainder  to,  in  trust,  taxable,  243. 
dower  of  exempt,  131. 

WIFE, 

liability  of,  as  tenant  by  entirety,  227,  284,  269. 
exemptions  of,  82,  84,  85  et  seq. 

see  '"Exemptions";    "Tenant  by  Entirety.1* 

WILL, 

right  to  take  under  a  privilege,  5,  6,  30  et  seq. 

bill  to  restrict  inheritance  by,  6  (note). 

when  probate  of,  has  no  effect  upon  tax,  166. 

power  of  sale  in,  as  to  foreign  real  estate,  effect  of,  157. 


654  INDEX. 

[References  are  to  Pages.] 

WILL— Continued, 

when  liability  for  tax  imposed  upon  executor  by,  377,  378  et  seq. 
when  declaration  in,  as  to  domicile,  controlling,  158. 
duty  of  appraisers  with  respect  to,  214. 


YOUNG   MEN'S   CHRISTIAN   ASSOCIATION, 
when  not  exempt  from  taxation,  111,  112. 


WEST   PUBLISHING  CO.,  PRINTERS  AND   8TEBEOTYPEBS,  ST.  PAUL,  MINN. 


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